REPORT AND RECOMMENDATIONS OF THE
TEXAS ACCESS TO LEGAL SERVICES
WORKING GROUP
December 5, 2023
i
CONTENTS
Contents ........................................................................................................................................... i
Table of Figures ................................................................................................................................ii
Executive Summary ......................................................................................................................... 1
Introduction .................................................................................................................................... 1
The Access to Justice Crisis in Texas ............................................................................................... 5
Supreme Court Charge .................................................................................................................... 7
Regulatory Reform in the U.S. and Beyond .................................................................................. 10
Legal Paraprofessionals Nationally ........................................................................................... 10
Non-Attorney Ownership and Fee Sharing ............................................................................... 14
National Guidance About Regulatory Reform .......................................................................... 16
Stakeholder Feedback ................................................................................................................... 17
Survey and Focus Group Methodology .................................................................................... 17
Feedback from Surveys and Focus Groups ............................................................................... 19
Work of the Access to Legal Services Working Group .................................................................. 27
Access to Legal Services Working Group Subcommittees ............................................................ 28
Scope of Practice Subcommittee .............................................................................................. 28
Paraprofessional Licensing Subcommittee ............................................................................... 35
Non-Attorney Ownership Subcommittee ................................................................................. 37
Working Group Recommendations .............................................................................................. 40
The Role of the Judicial Branch Certification Commission ....................................................... 40
Definition of Low-Income ......................................................................................................... 41
Licensed Paraprofessionals ....................................................................................................... 41
Paraprofessional Scope of Practice ........................................................................................... 42
Licensing and Regulation of Paraprofessionals ........................................................................ 47
Entities with Non-Attorney Ownership .................................................................................... 50
Other Potential Rule Revisions ................................................................................................. 64
ii
TABLE OF FIGURES
Figure 1. Number of Texans Served by Legal Services Compared to Texans Eligible ..................... 3
Figure 2. United States Census Bureau - Poverty Data 2022 .......................................................... 5
Figure 3. United States Census Bureau - 2022 Texas Household Income ...................................... 6
Figure 4. Working Group Membership ........................................................................................... 9
Figure 5. States that Permit Paraprofessional Practice with Attorney Supervision ..................... 12
Figure 6. States that Permit Paraprofessional Practice Without Supervision .............................. 14
Figure 7. Scope of Practice Subcommittee Membership ............................................................. 29
Figure 8. Income Eligibility Guidelines .......................................................................................... 32
Figure 9. 2023 Federal Poverty Level and Annual Income ........................................................... 33
Figure 10. Paraprofessional Licensing Subcommittee .................................................................. 35
Figure 11. Non-Attorney Ownership Subcommittee .................................................................... 37
1
EXECUTIVE SUMMARY
The Access to Legal Services Working Group developed proposals based on research and
discussions that occurred over close to a year, with assistance from many people, including
National Center for State Courts (NCSC) staff, guest speakers from jurisdictions where similar
proposals have been implemented, and subcommittees that included Working Group members
and other knowledgeable individuals. The proposals in this report—which include proposed
rule modifications attached as Appendix A—respond to the requests of the Supreme Court of
Texas (Supreme Court), with the specific goal of facilitating the provision of needed civil legal
services for low-income Texans. They include the following:
• Focus on low-income Texans. For the purposes of the proposals in this report, “low
income” is defined as at or below 200% of the federal poverty guidelines as determined
by the United States Department of Health and Human Services.
• Authorize Supreme Court-licensed (1) paraprofessionals to represent and assist low-
income Texans with certain matters in certain areas of the law and (2) Community
Justice Workers to provide limited-scope representation in justice court cases, under the
supervision of an attorney working for a legal aid entity or other nonprofit entity.
• Create rules, qualifications, licensing, and disciplinary infrastructure within the Judicial
Branch Certification Commission (JBCC) to ensure paraprofessionals have the necessary
training, skill, and oversight to deliver quality services while protecting the public.
• Create a pilot program, regulated and overseen by the Judicial Branch Certification
Commission and the Supreme Court, that permits non-attorney ownership under an
exception to Texas Disciplinary Rule of Professional Conduct 5.04 for entities that
demonstrate a business model that provides services to low-income Texans and
includes infrastructure to protect clients and ensure attorney independence.
INTRODUCTION
In Texas and throughout the country, there is a well-documented gap between the need for
civil legal services among people with low income and the resources available to meet that
need. The Legal Services Corporation (LSC), a federal nonprofit corporation that is the single
largest funder of civil legal aid for low-income Americans in the nation, has studied this “justice
gap” nationally, and has published studies documenting their findings.
1
Released in 2022, the
1
Legal Services Corporation, The Justice Gap: The Unmet Civil Legal Needs of Low-income Americans, at 7
(Apr. 2022), available at https://www.lsc.gov/initiatives/justice-gap-research (last accessed Dec. 5, 2023)
(hereinafter The Justice Gap).
2
most recent LSC report provides that low-income Americans do not receive any or enough legal
help for 92% of their civil legal problems.
2
Lack of access to legal help for issues such as child custody, domestic violence, eviction, wills,
probate, and consumer debt has dramatically impacted the way that Americans view the
judicial system.
3
The perception that courts exist only to solve problems for people who can
afford an attorney creates a civil justice crisis. Public confidence in the justice system and the
legal profession are at risk. As Chief Justice Nathan Hecht of the Supreme Court said:
“Justice for only those who can afford it is neither justice for all nor justice at all.”
The United States Census Bureau estimates that more than 4.2 million Texans live in poverty.
4
LSC funds programs that provide free legal services to individuals who live in households with
annual incomes at or below 125% of the federal poverty guidelines.
5
In 2021, this meant that
nationally, individuals who earned $16,100 or below, or families of four that earned $33,125 or
below, qualified for LSC-funded legal aid.
6
Under LSC guidelines, about 23% of Texas’ 11 million
households qualified for this legal aid in 2022.
7
The demand for civil legal help is great. The traditional model of delivering legal services to low-
income Texans does significant work, serving more than 120,000 low-income Texans annually.
8
But despite this, Texas is still ranked 46
th
for overall access to justice in the 2022 Justice Index.
9
2
Id.
3
GBAO, Memorandum to National Center for State Courts, 2022 State of the State Courts – National Survey
Analysis (Nov. 21, 2022), available at https://www.ncsc.org/__data/assets/pdf_file/0033/85965/NCSC-State-of-
the-State-Courts-Analysis_2022.pdf (last accessed Dec. 5, 2023).
4
United States Census Bureau, Quick Facts Texas, available at
https://www.census.gov/quickfacts/fact/table/TX/IPE120222 (last accessed Dec. 5, 2023).
5
Legal Services Corporation, What Is Legal Aid?, available at https://www.lsc.gov/about-lsc/what-legal-aid (last
accessed Dec. 5, 2023).
6
Id.
7
LSC-funded programs assist families of four that earn at or below $33,125. Id. The United States Census Bureau
reported that 23.5% of Texas households earned $34,999 or less in 2022. See U.S. Census Bureau, Texas profile,
available at https://data.census.gov/profile/Texas?g=040XX00US48 (last accessed Dec. 5, 2023) (hereinafter US
Census Bureau Texas Profile).
8
Texas Access to Justice Foundation, Access to Justice Facts, available at
https://www.teajf.org/news/statistics.aspx (last accessed Dec. 5, 2023) (hereinafter Access to Justice Facts).
9
National Center for Access to Justice, Justice Index State Scores and Rankings, available at https://ncaj.org/state-
rankings/justice-index (last accessed Dec. 5, 2023).
3
Figure 1. Number of Texans Served by Legal Services Compared to Texans Eligible
Many Texas attorneys dedicate substantial time to providing pro bono legal services and
contributing funds to organizations that assist low-income Texans with their civil legal needs,
but these services and contributions alone are not enough to meet the need.
Millions of low-income individuals go without legal help for myriad basic civil legal issues,
including housing, personal safety, economic security, and family matters. Increasing funding
for legal aid is critical, but it is not sufficient to close the justice gap. Legal aid organizations are
chronically underfunded, with budgets that have not nearly kept pace with inflation as the gap
has grown, and they are constantly seeking new ways to meet these needs.
In 2020, the Council of Chief Justices urged states to consider implementing regulatory
innovations to increase the provision of legal services.
10
The Council of Chiefs urged states to
re-examine barriers that prevent low-income populations from obtaining help that otherwise
could be available to them through innovation.
11
So far, at least 16 states and jurisdictions, including Utah, Arizona, Alaska, and Colorado, have
heeded this recommendation, implementing some form of legal regulatory reform to address
the justice gap.
12
Alaska’s Community Justice Worker paraprofessional program, which
10
See Conference of Chief Justices, Resolution 2: Urging Consideration of Regulatory Innovations Regarding the
Delivery of Legal Services (2020), available at,
https://www.ncsc.org/__data/assets/pdf_file/0010/23500/02052020-urging-consideration-regulatory-
innovations.pdf (last accessed Dec. 5, 2023) (hereinafter Conference of Chief Justices, Resolution 2).
11
Id.
12
Institute for the Advancement of the American Legal System, The Landscape of Allied Legal Professional
Programs in the United States (Nov. 2022), available at
0
500,000
1,000,000
1,500,000
2,000,000
2,500,000
3,000,000
Texans Served by Legal Aid LSC Eligible Texas Households
4
leverages existing community resources to provide assistance to low-income Alaskans, is a
model for some of the recommendations in this report.
13
Other states have programs under
consideration, including Connecticut, New York, and South Carolina.
14
Recognizing that the need for assistance with civil legal needs is great, and that traditional legal
aid is currently unable to meet the need, Justice Brett Busby of the Supreme Court—in his
capacity as liaison to the Texas Access to Justice Commission (Commission)—sent a letter to the
Commission on October 24, 2022. In the letter, the Supreme Court asked the Commission to
examine existing court rules and propose modifications that would:
1. allow qualified paraprofessionals to provide limited legal services directly to low-income
Texans; and
2. allow non-attorneys to have economic interests in entities that provide legal services to
low-income Texans while preserving attorney independence, including
recommendations about whether this rule modification be studied through a pilot
program or regulatory sandbox and whether modifications should focus on certain
services for which there is a particular need.
15
In early 2023, the Commission convened a Working Group to respond to the Supreme Court’s
charge. The Working Group split into three Subcommittees, each focused on one area of the
Supreme Court’s charge. The Subcommittees, which included Working Group members and
others recruited on the basis of relevant expertise or experience, met 23 times over the course
of eight months to discuss the Supreme Court’s charge.
• The Scope of Practice Subcommittee analyzed limited legal services that licensed
paraprofessionals could provide directly to low-income Texans, including what limits
should be placed on the type of work that could be done, in which areas of law such
work could be done, what rule and statutory revisions would be needed to authorize
and define procedures for limited paraprofessional practice of law, what eligibility
criteria for clients should be used, and what potential compensation sources for the
licensed paraprofessionals could be.
https://iaals.du.edu/sites/default/files/documents/publications/landscape_allied_legal_professionals.pdf (last
accessed Dec. 5, 2023) (hereinafter Landscape of Allied Legal Professional Programs).
13
See Community Justice Worker Program, Alaska Legal Services Corporation, available at https://www.alsc-
law.org/community-justice-worker-program/ (last accessed Dec. 5, 2023) (hereinafter Community Justice Worker
Program).
14
Landscape of Allied Legal Professional Programs, supra, note 12.
15
Supreme Court Letter, October 24, 2022, available at
https://www.texasatj.org/sites/default/files/2022_10%20ATJC%20Referral%20Letter%20%281%29.pdf (last
accessed Dec. 5, 2023) (hereinafter Supreme Court Letter).
5
• The Paraprofessional Licensing Subcommittee studied the content and structure of
proposed rules that would be necessary to permit paraprofessional licensing and
regulation, as well as licensing and regulation of entities through which limited legal
services could be provided directly to low-income Texans.
• The Non-Attorney Ownership Subcommittee examined existing rules and evaluated
how best to modify rules, as part of a pilot program, to permit non-attorneys to have
economic interests in entities that provide legal services to low-income Texans while
preserving professional independence.
Considering national data about the justice gap, as well as Office of Court Administration (OCA)
data about the number of self-represented litigants in Texas state court proceedings and data
about searches on texaslawhelp.org, together with feedback from stakeholders, including legal
aid organizations and the Texas Legal Services Center, the Subcommittees identified four focus
practice areas for licensed paraprofessionals: family law, housing (i.e., evictions), estate and
probate, and consumer debt.
THE ACCESS TO JUSTICE CRISIS IN TEXAS
United States Census Bureau data indicates that 14% of Texans live in poverty.
16
To determine
who is in poverty, the Bureau uses a set of income thresholds, which vary by family size.
17
If a
family’s income is less than the threshold, the family is determined to be in poverty.
18
The
official thresholds do not vary by geography, but they are updated for inflation, using the
Consumer Price Index.
Figure 2. United States Census Bureau - Poverty Data 2022
16
US Census Bureau Texas Profile, supra, note 7.
17
U.S. Census Bureau, How the Census Bureau Measures Poverty, available at
https://www.census.gov/topics/income-poverty/poverty/about.html (last accessed Dec. 5, 2023).
18
Id.
6
The Bureau breaks down annual household income into the following categories:
19
Figure 3. United States Census Bureau - 2022 Texas Household Income
The data demonstrates that millions of households in Texas cannot afford to pay an attorney if
they need assistance with a civil legal matter. Stakeholder feedback, collected as part of this
project, supports this point.
For many low-income Texans, legal aid (or other pro bono assistance) is the only option for
legal representation because they cannot afford private counsel. Stakeholders, including
attorneys, law school staff, paralegals, nonprofit leaders, and individuals from the State Bar of
Texas, reported a high level of unmet need for legal services.
20
They reported that nonprofit
legal aid organizations largely bear the burden of providing legal services to low-income Texans,
and that the legal aid community is not currently able to meet this need. Legal aid organizations
do significant work; Texas lawyers provide more than 2.72 million hours annually in free or
indirect legal services to the poor.
21
However, nationally, people do not get any or enough legal
help for 92% of the problems that have a substantial impact on them, and legal aid providers
19
US Census Bureau Texas Profile, supra, note 7.
20
For more information about stakeholder feedback, see the Stakeholder Feedback section of this report.
21
See Access to Justice Facts, supra, note 8.
7
must turn away at least 49% of people who seek help.
22
In surveys, Texas stakeholders reported
that there are not enough practitioners to meet demand, and those that are available are
“spread too thin.” Private law firms partner with legal aid to do pro bono work, but it is limited
and does not and cannot meet the overwhelming demand for legal services for low-income
Texans. LSC’s recent Justice Gap survey indicates that common areas of unmet civil legal need
include housing (eviction, landlord-tenant issues, and foreclosure), family law (child custody,
child support, protection from intimate-partner violence, and parentage), consumer debt,
public benefits, healthcare, employment-related issues, and education.
23
Stakeholders identified lack of access to attorneys as a major barrier to accessing the
courthouse. A substantial gap in resources means that individuals are forced to either represent
themselves or forgo justice. This lack of access undermines public trust and confidence in the
courts.
There is no one-sized-fits-all solution to the justice gap. When considering the changes to make,
it is important to consider all barriers that prevent the low-income population from obtaining
help that otherwise could be available to them through increasing opportunities for legal
representation and innovation.
SUPREME COURT CHARGE
The Supreme Court has exclusive jurisdiction to regulate the practice of law in Texas, including
the authority to ensure “efficient administration of the judicial branch,” the power to
“promulgate rules of administration . . . for the efficient and uniform administration of justice in
the various courts,” and the power to regulate “rules governing the admission to the practice of
law.”
24
The Texas Government Code grants the Supreme Court administrative powers, including
“supervisory and administrative control over the judicial branch,”
25
and it also provides that
“[o]nly the supreme court may issue licenses to practice law” in Texas.
26
Under the leadership of Chief Justice Hecht, the Supreme Court has focused on a “commitment
to the rule of law and access to justice for all.”
27
Recognizing that the need for assistance with
civil legal needs is great, and that current budget and staffing constraints make it difficult to
22
The Justice Gap, supra, note 1, at 8, 75.
23
Id. at 8.
24
Tex. Const. art. V, § 31(a); Tex. Gov’t Code § 82.021.
25
Tex. Gov’t Code § 74.021.
26
Id. § 82.021.
27
Texas Supreme Court, Advisory: At 25 Years and 26 Days, Chief Justice Hecht Marks History as Longest-Serving
Justice (Jan. 24, 2014), available at https://www.txcourts.gov/media/460065/Hecht_anniversary_012414.pdf (last
accessed Dec. 5, 2023).
8
meet the need, Justice Busby—the Court’s liaison for access to justice—sent a letter
28
to the
Commission on October 24, 2022. In the letter, the Supreme Court asked the Commission to
examine existing court rules and propose modifications that would:
1. allow qualified paraprofessionals to provide limited legal services directly to low-income
Texans, including considerations about: qualifications, licensing, practice areas, and
oversight of providers; eligibility criteria for clients; and whether compensation for
providers should be limited to certain sources, such as government and non-profit
funds; and
2. allow non-attorneys to have economic interests in entities that provide legal services to
low-income Texans while preserving attorney independence, whether such rule changes
should have limitations such as a pilot period or regulatory sandbox structure, and
whether the modifications should focus on certain services for which there is a
particular need.
In early 2023, the Commission formed the Working Group to respond to the Supreme Court’s
request. Co-chaired by Lisa Bowlin Hobbs, Hon. Michael Massengale, and Kennon L. Wooten,
the Working Group brought together 27 members, who were selected to ensure a broad range
of experiences and perspectives.
28
Supreme Court Letter, supra, note 15.
9
Figure 4. Working Group Membership
Justice Busby and Commission Chair Harriet Miers also attended many of the working group’s
meetings. The Commission contracted with NCSC to provide support for the Working Group
and the overall project at hand. NCSC provided substantive expertise on nationwide regulatory
reform efforts, as well as administrative support to the Working Group and its Subcommittees.
Working Group Membership
Craig Hopper, Austin
Monica Karuturi, Houston
Prof. Renee Knake Jefferson, Houston
Richard LaVallo, Austin
Hon. Lora Livingston, Austin
Ellen Lockwood, San Antonio
Hon. Michael Massengale, Houston
Rick Melamed, Bellaire
Karen Miller, Austin
Prof. Mary Spector, Dallas
Hon. Polly Spencer, San Antonio
Maria Thomas Jones, Fort Worth
Terry Tottenham, Austin
Kennon Wooten, Austin
*In September 2023, Hon. Nick Chu resigned from the Working Group (due to a new judicial position
and associated responsibilities) and was replaced by Hon. Sylvia Holmes.
10
REGULATORY REFORM IN THE U.S. AND BEYOND
Texas is one of many states that have implemented or are considering regulatory reform as a
mechanism to increase access to justice. At least sixteen states and non-U.S. jurisdictions have
considered various aspects of regulatory reform—including the use of non-attorney
paraprofessionals and non-attorney financial interests in law firms—to address the need for
low-cost legal services and to support innovation in the legal profession.
29
The Working Group carefully considered reforms in these jurisdictions as potential models,
while keeping in mind the unique charge from the Supreme Court to focus the study on the
needs of low-income Texans.
LEGAL PARAPROFESSIONALS NATIONALLY
In the United States, nine states currently permit paraprofessional practice in some form, and
others are considering reform.
30
Most paraprofessional programs were created within the past
four years.
31
All require initial training and licensure or approval of some type. The extent of
these requirements varies from specific education and examinations and licensure by a
supreme-court adjacent body to approval by a supervising attorney.
Jurisdictions that permit paraprofessional practice generally fall into two categories:
jurisdictions in which paraprofessionals must be supervised by an attorney and jurisdictions in
which paraprofessionals can practice independently. States that permit paraprofessional
practice without attorney supervision have developed a complaint process where individuals
may report concerns about paraprofessional work. Initial data indicates that there have been
few complaints about paraprofessional practice.
As discussed in the Executive Summary and Recommendations sections of this report, the
Working Group recommends that Texas take a hybrid approach, permitting licensed
paraprofessionals to perform some tasks independently and other tasks under attorney
supervision—without reducing or otherwise impacting the current regulatory regime that
allows paraprofessionals to assist attorneys in the provision of legal services to their clients.
29
Landscape of Allied Legal Professional Programs, supra, note 12.
30
Alaska, Arizona, Colorado, Hawaii, Minnesota, New Hampshire, Oregon, Utah, and Washington.
31
The Washington Supreme Court adopted Admission and Practice Rule (APR) 28 in 2013. This rule authorized
Limited License Legal Technicians (LLLT) to assist with certain family law matters in Washington State. The
Supreme Court sunset the program in 2020. See generally APR 28, Limited Practice Rule for Limited License Legal
Technicians, available at https://www.courts.wa.gov/court_rules/pdf/APR/GA_APR_28_00_00.pdf (last accessed
Dec. 5, 2023).
11
ATTORNEY-SUPERVISED PARAPROFESSIONALS
Alaska,
32
Delaware,
33
Hawai’i,
34
New Hampshire,
35
and Minnesota
36
all license paraprofessionals
to perform specific tasks with attorney supervision. Key elements of these programs are
summarized below.
State
Substantive Areas of Practice
Procedural Tasks Permitted
Other Scope
Requirements
Alaska
SNAP applications and
appeals, wills, ICWA
enforcement, debt collection
defense, and domestic
violence protective orders.
Consulting with and advising
clients; completing and filing
necessary court documents;
and assisting pro se clients at
certain types of hearings and
settlement conferences.
Delaware
Residential landlord tenant
cases.
Legal representation, including
in-court representation.
Representation for
tenants only.
Hawai’i
Family court cases involving
issues related to paternity,
child custody, and visitation.
Obtaining facts and
documents; informing
clients about procedures;
reviewing documents;
performing legal research;
drafting and filing documents
after review by supervising
attorney; participating in
mediation and/or settlement
negotiations; court
representation.
Only available to
self-represented
parties who qualify
under income
guidelines
established by the
Legal Aid Society of
Hawai'i.
32
Alaska Bar Rule 43.5, available at https://www.alsc-law.org/wp-content/uploads/2022/12/sco1994.pdf (last
accessed Dec. 5, 2023).
33
Del. R. Sup. Ct. 57.1, available at https://courts.delaware.gov/forms/download.aspx?id=167228 (last accessed
Dec. 5, 2023).
34
Order Establishing a Rural Paternity Advocate Pilot Project in the Third Circuit, In re Rural Paternity Advocate
Pilot Project in the Third Circuit (Haw. May 15, 2023), available at
https://nationalcenterforstatecourts.box.com/s/f9ybxnx8psl5sq9snx5q5ru5gcwgx0c4 (last accessed Dec. 5, 2023).
35
N.H. R. Sup. Ct. 35, available at https://www.courts.nh.gov/rules-supreme-court-state-new-hampshire/rule-35-
appearances-court-eligible-paraprofessionals (last accessed Dec. 5, 2023).
36
Order Implementing Legal Paraprofessional Pilot Project, No. ADM19-8002 (Minn. Sept. 29, 2020), available at
https://www.mncourts.gov/mncourtsgov/media/Appellate/Supreme Court/RecentRulesOrders/Administrative-
Order-Implementing-Legal-Paraprofessional-Pilot-Project.pdf (last accessed Dec. 5, 2023) (Supervised Practice
Rule 12).
12
State
Substantive Areas of Practice
Procedural Tasks Permitted
Other Scope
Requirements
New
Hampshire
Family and landlord-tenant
matters.
Drafting pleadings, parenting
plans, protection orders, and
financial affidavits; providing
“paraprofessional
representation” in family and
district courts in Manchester,
Berlin, and Franklin.
Only available to
people who have
incomes at or less
than 300 percent of
the federal poverty
level.
Minnesota
Landlord-tenant cases; family
law cases where the issues
are not significantly complex;
and domestic violence order
of protection cases.
Providing advice, representing
clients in court; and
representing clients in
mediation.
Figure 5. States that Permit Paraprofessional Practice with Attorney Supervision
Alaska’s program permits paraprofessional practice under a program called Community Justice
Workers.
37
This program operates under the auspices of Alaska Legal Services and seeks to
build capacity by training individuals with connections to community organizations that already
serve low-income people with unmet civil legal needs, particularly in rural and remote
communities.
38
37
See Community Justice Worker Program, supra, note 13.
38
Id.
13
INDEPENDENT PARAPROFESSIONALS
Arizona,
39
Colorado,
40
Oregon,
41
and Utah
42
license paraprofessionals who are permitted to act
independently and provide legal services without attorney supervision. Key components of
these programs are highlighted here.
State
Substantive Legal Areas
Procedural Tasks Permitted
Arizona
Family law; limited jurisdiction civil cases;
limited jurisdiction criminal cases where no jail
time is involved; and state administrative law
(where allowed by the administrative agency).
Drafting, signing, and filing legal
documents; providing advice, opinions,
or recommendations about possible
legal rights, remedies, defenses, options
or strategies; appearing before a court
or tribunal; and negotiating on behalf of
a client.
Colorado
Some family law matters and name changes.
Providing advice; preparing and
reviewing documents and pleadings;
advocating for clients in mediation;
standing or sitting at counsel table with
the client during a court proceeding to
provide emotional support and help the
client understand proceedings;
answering questions posed by the
court, addressing the court upon the
court’s request.
Oregon
Family law and landlord-tenant cases.
Providing advice and assistance (but not
in-court representation).
39
Ariz. Code Jud. Admin. § 7-210, available at https://www.azcourts.gov/Portals/0/admcode/pdfcurrentcode/7-
210 Legal Paraprofessional Amended 3_29_23.pdf?ver=JRgcwRNA51KnJVAv3x9dlg%3d%3d (last accessed Dec. 5,
2023).
40
Rules Governing Admission to the Practice of Law in Colorado, Rule 207.1 through Rule 207.14, available at
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2023/Rule%20Chan
ge%202023(06).pdf (last accessed Dec. 5, 2023).
41
Supreme Court of Oregon, Rules for Admission for Licensing Paralegals, available at
https://www.osbar.org/_docs/rulesregs/RulesforLicensingParalegals.pdf (last accessed Dec. 5, 2023); Rules of
Professional Conduct for Licensed Paralegals, available at https://www.osbar.org/_docs/rulesregs/orpc-lp.pdf(last
accessed Dec. 5, 2023); Oregon State Bar Minimum Continuing Legal Education Rules, available at
https://www.osbar.org/_docs/rulesregs/mclerules.pdf (last accessed Dec. 5, 2023); Oregon State Bar Rules of
Procedure, available at https://www.osbar.org/_docs/rulesregs/rulesofprocedure.pdf (last accessed Dec. 5, 2023).
42
Utah Code Jud. Admin. R. 14-802, available at https://legacy.utcourts.gov/rules/view.php?type=ucja&rule=14-
802 (last accessed Dec. 5, 2023).
14
State
Substantive Legal Areas
Procedural Tasks Permitted
Utah
Family law, debt collection, and landlord-
tenant cases.
Identifying legal issues; assisting with
approved forms; reviewing documents
given by opposing party; completing
settlement agreements; communicating
with opposing parties.
Washington
43
Family law
Advising clients, completing and filing
court documents, and assisting pro se
clients at some hearings and settlement
conferences.
Figure 6. States that Permit Paraprofessional Practice Without Supervision
NON-ATTORNEY OWNERSHIP AND FEE SHARING
Arizona, D.C., and Utah have modified their rules prohibiting non-attorney ownership of entities
that provide legal advice. This has facilitated innovative new modes of delivering legal services,
such as by enabling legal organizations to partner with companies that leverage technology to
serve low-income clients more efficiently and at lower cost. These modifications include
permitting non-attorney ownership interests in law firms and allowing profit sharing with non-
attorneys by law firms. The United Kingdom and New South Wales, Australia have also
experimented with non-attorney ownership and fee sharing with non-attorneys.
ARIZONA
Arizona enacted Arizona Supreme Court Rule 31.1 in 2020. This rule permits non-attorneys to
have economic interests and decision-making authority in entities that provide legal services if
the entity employs one person who is an active member in good standing with the Arizona
State Bar, is licensed, and only permits authorized people to provide legal services. Entities
must apply to the Arizona Supreme Court for licensure and are granted a one-year renewable
license.
44
D.C.
The District of Columbia’s Rule of Professional Conduct 5.4 permits fee-sharing with non-profits
and allows non-attorney ownership of law firms if the sole purpose of the partnership or
organization is to provide legal services. Anyone with a financial or managerial interest in the
43
Washington is not issuing new licenses to paraprofessionals as of July 2023, but licensed paraprofessionals may
still practice.
44
Ariz. Code of Jud. Admin. § 7-209, available at https://www.azcourts.gov/Portals/0/admcode/pdfcurrentcode/7-
209 Amended 7_13_22.pdf?ver=U0e16ry0d6dSkHPeGBdgng%3d%3d (last accessed Dec. 5, 2023).
15
firm must abide by the rules of professional conduct, and attorneys with financial interest or
managerial authority must take responsibility for the conduct of non-attorneys.
45
UTAH
Utah modified its Rule of Professional Practice 5.4 in 2020 to allow profit-sharing and allow
attorneys to practice in partnerships owned by non-attorneys if authorized by the provisions of
Standing Order 15.
46
The Utah Supreme Court created the Office of Legal Services Innovation, a
division of the Utah Supreme Court, via Standing Order 15. The Office of Legal Services
Innovation regulates and monitors alternative business structures (ABS) and alternative legal
providers (i.e., Licensed Paralegal Practitioners), sometimes called ALPs. The Office of Legal
Services Innovation also investigates complaints about these entities.
47
There is a reporting
process for all entities authorized by the Office of Legal Services Innovation.
48
The Utah
program is a seven-year pilot program, and the Utah Supreme Court will assess the program at
the end of the pilot period.
49
UNITED KINGDOM
In the United Kingdom, the 2007 Legal Services Act permitted ABSs to operate in England and
Wales. The Act includes protections to ensure that attorneys do not compromise their
professional independence, a fitness test for non-attorneys who have an ownership interest in
law firms, and the appointment of someone in the firm responsible for ensuring compliance
with attorney ethics obligations.
50
45
D.C. Rules of Pro. Conduct, Rules 5.4(a) and (b), available at https://www.dcbar.org/getmedia/85934036-ef28-
4a1c-8bda-8e79ecfd4985/DC-Rules-of-Professional-Conduct_1220.pdf (last accessed Dec. 5, 2023).
46
Utah Supreme Court Standing Order No. 15 (amended Sept. 21, 2022), available at
https://utahinnovationoffice.org/wp-content/uploads/2022/10/Standing-Order-No.15-Amended-9.21.22.pdf (last
accessed Dec. 5, 2023) (hereinafter Utah Standing Order No. 15); see also Utah Code Jud. Admin. R. 13-5.4,
available at https://legacy.utcourts.gov/rules/view.php?type=ucja&rule=13-5.4 (last accessed Dec. 5, 2023).
47
Utah Standing Order No. 15 supra, note 46.
48
Utah Supreme Court, The Office of Legal Services Innovation, What We Do, available at
https://utahinnovationoffice.org/about/what-we-do/ (last accessed Dec. 5, 2023) (hereinafter Utah Office of Legal
Services Innovation).
49
Utah Standing Order No. 15 supra, note 46.
50
Legal Services Act 2007, c. 29 (UK), available at https://www.legislation.gov.uk/ukpga/2007/29 (last accessed
Dec. 5, 2023); see also D. Engstrom et al., Legal Innovation After Reform: Evidence from Regulatory Change, at 19-
21 (2022), available at https://law.stanford.edu/wp-content/uploads/2022/09/SLS-CLP-Regulatory-Reform-
REPORTExecSum-9.26.pdf (last accessed Dec. 5, 2023) (assessing existing evidence on the impact of regulatory
reform in England and Wales).
16
NEW SOUTH WALES, AUSTRALIA
In 2001, New South Wales, Australia passed legislation allowing attorneys to share fees and
provide legal services with non-attorneys, with provisions to ensure attorney independence,
including a requirement that at least one director be an attorney and a management structure
to ensure that attorneys act within their ethical obligations to clients.
51
NATIONAL GUIDANCE ABOUT REGULATORY REFORM
The Working Group carefully reviewed research, discussion, and recommendations from
national organizations addressing regulatory reform, including the Conference of Chief Justices,
the American Bar Association (ABA), and the Institute for the Advancement of the American
Legal System (IAALS).
CONFERENCE OF CHIEF JUSTICES RESOLUTION
In 2020, noting that traditional solutions alone are “not likely to resolve the gap,” the
Conference of Chief Justices passed Resolution 2, Urging Consideration of Regulatory
Innovations Regarding the Delivery of Legal Services.
52
This resolution encouraged states to
experiment with regulatory innovations to spur new legal service delivery models that provide
greater access while maintaining quality, achieving affordability, and protecting the public
interests.
53
It specifies “authorization and regulation of new categories of legal service
providers, the consideration of ABS, and the reexamination of provisions related to the
unauthorized practice of law” as examples of innovations that might help close the Justice
Gap.
54
AMERICAN BAR ASSOCIATION (ABA)
The ABA also encourages jurisdictions to consider new ways to address the access-to-justice
crisis, including through regulatory innovations to improve “accessibility, affordability, and
quality of civil legal services.”
55
51
Legal Profession Uniform Law (NSW) 2014, available at
https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2014-16a#sec.6 (last accessed Dec. 5, 2023).
52
Conference of Chief Justices, Resolution 2, supra, note 10.
53
Id.
54
Id.
55
American Bar Association, Resolution 115: Encouraging Regulatory Innovation (2020), available at
https://www.americanbar.org/content/dam/aba/administrative/center-for-innovation/r115resandreport.pdf (last
accessed Dec. 5, 2023). In contrast, the ABA, in its 2022 Resolution 402, also has stated that non-attorney
ownership of law firms and fee sharing are incompatible with core values of the legal profession. American Bar
Association House of Delegates Resolution 402, 2022, available at
https://www.americanbar.org/content/dam/aba/administrative/news/2022/08/hod-resolutions/402.pdf (last
accessed Dec. 5, 2023).
17
INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM (IAALS)
IAALS at the University of Denver has issued two reports on regulatory reform highlighting state
initiatives and providing guidance and recommendations for states or jurisdictions that are
interested in undertaking regulatory reform.
56
The recommendations build on lessons learned
from states that have undertaken regulatory reform and encourage jurisdictions to modify their
Rules of Professional Conduct to allow non-attorney ownership of law firms and allow
representation by paraprofessionals.
57
IAALS also offers recommendations about the structure
of programs, including entry requirements for paraprofessionals.
58
STAKEHOLDER FEEDBACK
In addition to research and consideration of what other jurisdictions have done in this space,
the Working Group also solicited feedback from stakeholders in Texas as a critical source of
information to guide their work.
The Working Group collected stakeholder feedback through a variety of means, including an
online survey, focus groups, email, and direct outreach to members of the State Bar of Texas.
The feedback obtained from surveys and focus groups is summarized here together with a brief
overview of the survey and focus group methodology. Email suggestions received at
[email protected] as of December 3, 2023 are included in Appendix B.
SURVEY AND FOCUS GROUP METHODOLOGY
NCSC recommended categories of stakeholders and compiled a list of individuals to contact for
survey and focus-group participation, with input and approval from senior Commission
leadership and the co-chairs of the Commission’s Access to Legal Services Working Group. NCSC
scheduled 10 focus groups and circulated an online survey to all stakeholders on the list.
NCSC drafted questions for the survey and focus groups with input and approval from
Commission leadership and the three co-chairs of the Commission’s Access to Legal Services
Working Group. Focus group and survey questions are attached to this report in Appendix C.
56
Landscape of Allied Legal Professional Programs, supra, note 12; Institute for the Advancement of the American
Legal System, Allied Legal Professionals: A National Framework for Program Growth (June 2023), available at
https://iaals.du.edu/sites/default/files/documents/publications/alp_national_framework.pdf (last accessed Dec. 5,
2023) (hereinafter Allied Legal Professionals: A National Framework).
57
Allied Legal Professionals: A National Framework, supra, note 56.
58
Id.
18
The survey and focus group questions were designed to:
1) capture information about current Texas initiatives that operate to assist people with
free legal services;
2) understand barriers that low-income individuals face that obstruct access to the civil-
legal system;
3) discuss strategies that the Commission believes could help address the justice gap for
low-income Texans, as well as barriers and opportunities to implementation; and
4) recognize how the Commission can work with legal and justice system stakeholders to
propose legal reform.
This report does not include a complete list of individual responses and does not identify focus-
group participants or survey respondents by name to preserve anonymity.
59
FOCUS GROUPS
NCSC held focus group sessions via Zoom in March and June 2023. NCSC recommended
including individuals from the following stakeholder groups:
• Texas Opportunity and Justice Incubator (TOJI) program
• Nonprofits
• State Bar of Texas committees
• Judges
• Legal aid and pro bono providers
• Paralegals
• Law Schools
• Public Policy
• State Bar of Texas leaders
The co-chairs of the Working Group and Commission leadership recommended individuals that
NCSC should contact. NCSC staff invited stakeholders to focus group sessions directly via email.
Email invitations contained background information about the project and a link to register for
each session. Focus group participation was voluntary. Commission leadership and the Working
Group co-chairs helped NCSC by encouraging individuals to register and participate in the focus
groups. NCSC sent an email reminder two business days before each of the scheduled focus
groups.
59
Survey respondents were required to provide their name and contact information to ensure that the
Commission had context for their responses.
19
At the start of each focus group, participants were given a brief overview of the project and
NCSC’s role. They were told that their responses would be aggregated to preserve anonymity.
ONLINE SURVEY
NCSC also circulated an online survey in June 2023 to 132 stakeholders, including individuals
from the following categories:
• Attorney Regulation
• Law Schools
• Legal Aid Providers
• Non-Profits
• Paralegals
• Policy Stakeholders
• Pro-Bono Associations
• State Bar of Texas
• State Bar of Texas Committees
• State Bar of Texas Sections
• TOJI
• Faith-Based Organizations
FEEDBACK FROM SURVEYS AND FOCUS GROUPS
Stakeholder feedback from the surveys and focus groups was similar, and the following sections
summarize all responses together.
CURRENT INITIATIVES TO PROVIDE LEGAL SERVICES TO LOW-INCOME TEXANS
Stakeholders reported that nonprofit legal aid organizations largely bear the burden of
providing legal services to low-income Texans. Survey participants note that practitioners are
“spread too thin” and that there are not enough to meet demand. Private law firms partner
with legal aid to do pro bono work, but it is limited. There are many cross referrals between
legal aid organizations and nonprofit agencies that provide non-legal services. Some of these
non-legal agencies include domestic violence shelters, hospitals, and the Bexar County Family
Justice Center.
Stakeholders reported on ways that non-attorneys currently provide services in Texas. A survey
respondent reported that many non-attorneys provide legal advice and even appear in court.
Third-year law students are permitted to obtain a “bar card” that allows them to provide
services under the supervision of an attorney. Stakeholders indicated that law students and
20
paralegals can spend much more time with clients than an attorney ever could, which is a
significant benefit and has the potential to increase access.
Stakeholders reported that non-attorneys are permitted to represent litigants in justice courts
in certain circumstances. One stakeholder reported that “Landlords are almost always
represented by paraprofessionals in eviction cases,” citing property management companies
and other for-profit services like Nationwide. In Texas, tenants may be represented by non-
attorneys in justice courts, but stakeholders report that this is uncommon.
60
The Texas Legal Services Center uses trained qualified representatives, who are non-attorney
advocates, to assist with disability, elder care, and administrative proceedings. Non-attorney
advocates also participate in special-education and Section 504/ADA meetings at the local
school level. Stakeholders note that non-attorney representation is sometimes the only way a
child can obtain accommodations or support services needed to get an education. Non-
attorney representatives also assist in Social Security benefit proceedings under close
supervision of an attorney.
61
Stakeholders expressed concern about quality of legal services and unauthorized practice of
law. One stakeholder noted encountering estate documents, written by a notary, that are
incorrect or missing information. Two other stakeholders named “notarios” as examples of
individuals who frequently flout the rules and take advantage of consumers. Stakeholders
expressed concern that people may not understand the difference between legal help from an
attorney and services provided by non-attorneys.
BARRIERS TO CIVIL LEGAL SYSTEM ACCESS FOR LOW-INCOME INDIVIDUALS
Common legal issues experienced by low-income Texans include family law, housing/eviction,
debt, probate, public benefits, criminal records expungement, and immigration. In the context
of family law, child custody, divorce, and child support were mentioned most frequently.
Stakeholders reported that the lifting of the eviction moratorium put in place during the COVID-
19 pandemic has led to a “drastic increase in the need for housing support.”
Stakeholders identified lack of access to attorneys as a major barrier to access. One stakeholder
noted that potential clients face “long wait times and unrealistic financial thresholds.” For many
low-income Texans, legal aid (or other pro bono assistance) is the only option for legal
representation because they cannot afford private counsel. Legal aid is under resourced and is
60
Tex. R. Civ. P. 500.4(a)(2) permits tenants “[to] be represented by an authorized agent in an eviction case”
without court approval. Subsection (c) requires “good cause” for a pro se party to be “assisted by a family member
or other individual who is not being compensated.”
61
20 C.F.R. § 404.1740.
21
often unable to accept new cases due to large caseloads. Without additional resources, legal
aid cannot take on additional cases. Another stakeholder reported that legal services are siloed
and compete for the same limited resources.
Stakeholders also identified legal aid eligibility as another barrier. Legal aid programs have strict
rules regarding client eligibility, which include income and citizenship, among others.
Stakeholders noted that many Texans apply for legal aid but are screened out as ineligible. One
survey respondent noted that partners and clients “…become frustrated and cynical about our
ability to help…because of the income and scope of service restrictions imposed by grants….”
Stakeholders reported that middle-income Texans also need low-cost legal services and are just
as likely as low-income Texans to go without legal help because they cannot afford private
counsel. Stakeholders believe that the distinction between low- and moderate-income Texans
feels arbitrary to most people.
One stakeholder reported that people are sometimes unable to obtain counsel in discrete
areas. For example, in preliminary Veteran Affairs benefits cases, an attorney is not permitted
to charge for services, leading to a lack of representation in this area. Therefore, many people
proceed pro se.
FEEDBACK ON PARAPROFESSIONAL LEGAL SERVICES
The following sections summarized responses received in response to targeted questions about
the use of legal paraprofessionals to address the justice gap.
OVERVIEW OF STAKEHOLDER OPINIONS ON PARAPROFESSIONAL LEGAL SERVICES
Stakeholders agreed that there is a pressing need to expand access to legal services for low-
income Texans but differed on the best approach to take. One stakeholder noted “we could
train the staff at our community partner agencies to provide some of the legal advice and
representation as directed by legal aid staff attorney […] This might include public organizations
like folks in municipalities, libraries, and hospitals as examples.” Another stakeholder noted
that paraprofessionals could “free up practicing attorneys to focus on legal matters.”
Permitting paraprofessionals to provide limited legal services to low-income Texans could be an
opportunity to create a framework for controlling, monitoring, and improving the current
landscape. Some stakeholders recommended focusing on creating market incentives for
attorneys to serve low-income Texans, by offering limited-scope representation and reducing
the cost of providing legal services, including expanding public service loan forgiveness
programs for attorneys. Another wondered whether funds dedicated to implementing a
paraprofessional program in Texas might be better used to support existing programs. Some
22
stakeholders feared that permitting paraprofessional practice would “open Pandora’s box for
predatory practices and sham law shops.”
Some stakeholders wondered, “Is something better than nothing?” One stakeholder noted “I
do believe that paraprofessionals could be effective advocates in eviction cases, but only if they
were properly trained. Regardless, any type of advocacy on behalf of vulnerable tenants would
certainly be better than no advocacy at all. When tenants go to court unrepresented, the data
shows they lose most of the time but should have won about 85% of the time an eviction is
granted against them. I don't think a paraprofessional acting as an advocate could do any worse
or cause any material harm in a system this broken.”
Most stakeholders were curious about the quality of training, oversight, and scope of services a
paraprofessional would be permitted to provide. Some stakeholders were uncomfortable with
paraprofessionals providing legal advice but were comfortable with them providing legal
information.
BARRIERS TO IMPLEMENTATION
Stakeholders identified three main categories of implementation barriers: regulation,
paraprofessional scope of practice, and training. Paraprofessional training generated the most
conversation.
Stakeholders wondered which regulatory body would oversee paraprofessionals. Stakeholders
wanted rules of ethics and disciplinary procedures that would apply to paraprofessionals,
similar to current rules of professional conduct for attorneys and paralegals. Stakeholders felt
that this would ensure higher quality services, but expressed concern about whether this level
of oversight would be possible.
Stakeholders expressed concern about possible “collateral consequences” if a paraprofessional
provides legal advice based on limited information. They also wondered what remedies would
exist if a consumer received bad legal services. Some noted that handling the fall-out in the
event of malpractice could be expensive and perhaps more time-consuming than if the matter
was initially handled by an attorney.
Stakeholders asked about scope of service and paraprofessional boundaries. They wanted a
clear line that delineates when a paraprofessional must “refer a matter to an actual attorney.”
Some stakeholders expressed fear about the public relying too much on paraprofessionals and
not “understand[ing] why they would need to hire an attorney at all.” Stakeholders also voiced
concern that “paraprofessional practice would cheapen the profession,” and “services will be
subpar and further disadvantage low-income Texans.”
23
Stakeholders felt that rigorous and extensive training would be needed for any form of
paraprofessional practice. Stakeholders believed that the level of training should correspond to
the level of services a paraprofessional is permitted to provide. When asked about training,
most stakeholders agreed that nothing could replace on-the-job training. Shadowing,
paraprofessional observation of a licensed attorney, attorney supervision, and in-person
education were considered “essential” parts of any implementation plan. One stakeholder
noted that training should include “a mix of easily accessible, free training and experience
which can be verified by a former employer or a sponsoring organization where the
paraprofessional plans to volunteer at.” Stakeholders who supported paraprofessional practice
in the area of domestic violence recommended training on “trauma informed care, ethics, and
procedure.”
Some stakeholders felt that no current training program would be sufficient to train
paraprofessionals, and that no one, including paralegals, should be permitted to participate
without meeting certain training requirements. One stakeholder noted, “Even though I adore
my paralegal, I would never give them a limited license.”
Some stakeholders believe that education should be in-person, noting that in-person training
creates more “accountability” and could “weed out individuals who would not take the
responsibility as seriously as they need to.” Conversely, some stakeholders noted that in-person
education would be more costly and might reduce the potential pool of candidates. One
stakeholder recommended that “foundational legal principles and how the court work[s] could
be online modules, but any focused or directed learning needs to be in person.”
Stakeholders offered ideas that included creating a “pseudo-apprenticeship structure akin to
the ‘baby bar.’” Some stakeholders thought that paraprofessionals could be given the option to
complete one year of law school, and then apprentice with a local organization in lieu of two
additional years of law school followed by the bar exam. One stakeholder suggested the
Commission “consider modeling the program after the paralegal certification process that
currently exists in Texas.”
There was a consensus that upon completion of any training program, a paraprofessional
should obtain certification from a qualified organization with high standards and requirements.
Stakeholders also widely agreed that continuing legal education to maintain certification should
be required, including “an annual refresher on the general prohibitions on paralegals, ethics,
and privacy training.”
One stakeholder made a comparison to nurse practitioners and how “they are trained to do
everything, but still need a doctor in the room.” There was a concern that this program would
“create […] inefficiencies if attorneys are required to supervise paraprofessionals.”
24
OPPORTUNITIES FOR IMPLEMENTATION
Stakeholders who supported paraprofessional certification noted limitations to the scope of
practice that they would be comfortable with. Suggestions ranged from specialization in a
specific legal area to limiting paraprofessionals to assisting with intake only. One stakeholder
specifically recommended requiring training “in the areas the person is permitted to practice.”
Most stakeholders reported that they would be comfortable with paraprofessionals answering
procedural questions, issue spotting, and helping with court forms. One stakeholder stated: “If
an organization has good forms, a paraprofessional could assist a low-income Texan with filling
it out.” Some stakeholders were uncomfortable with the idea of a paraprofessional
representing clients in court.
Stakeholders were more comfortable with the idea of paraprofessionals working in courts of
limited jurisdiction. Stakeholders noted a need for “advocates” in matters such as truancy,
regardless of whether the advocates provided legal services or were just there to support the
child. Stakeholders who were open to the idea of paraprofessional practice agreed that
designating specialized areas of focus would make them more comfortable with expanding the
roles and responsibilities of paraprofessionals. Framing paraprofessional licensure with limited
scope practice areas as a “proof of concept” that could “later be expanded to other areas could
reduce backlash.”
FEEDBACK ON NON-ATTORNEY OWNERSHIP
The following sections reflect feedback received in response to targeted questions about the
use of non-attorney ownership to address the justice gap.
OVERVIEW OF STAKEHOLDER OPINIONS ON NON-ATTORNEY OWNERSHIP
Some stakeholders expressed confusion about how permitting non-attorneys to have economic
interests in entities that provide legal services to low-income Texans would expand access to
justice. One noted “I don’t see the payoff for non-attorneys.” Another noted “non-attorney
ownership seems to indicate a for-profit business interest, which feels counter intuitive to
serving indigent Texans who currently qualify for free legal services.”
Most stakeholder concerns stemmed from a lack of understanding about how a rule change
would create a “financial opportunity” when the target consumers are low-income Texans who
generally cannot afford legal services. Stakeholders expressed concern about potential
predatory practices that could be amplified when money is involved. One stakeholder worried
that changes would “gut the practice of lawyers who currently help low-income Texans.”
Another stakeholder noted that probate and family law issues often go unaddressed because of
25
low-income Texans’ inability to afford counsel, noting “Texas lawyers do not take these types of
pro bono cases because they can be lengthy and complicated.” This stakeholder also
recommended raising the maximum income level to qualify for services.
BARRIERS TO IMPLEMENTATION
Stakeholders reported that they did not trust non-attorney owned entities. They were
concerned about predatory entities like payday lenders and did not see an incentive for for-
profit entities in situations where clients would be unable to pay. Some stakeholders feared
that non-attorney ownership would result in a “fundamental change to the fabric of legal
services” that would create a “slippery slope and dismantling of quality legal representation.”
Stakeholders were unclear about how opening investment opportunities for legal services
would improve services and access for low-income Texans. One stakeholder noted “If
businesses wanted to invest in legal aid they would already be doing so.” One stakeholder
noted that entities owned by non-attorneys, such as “notarios,” already exist. They are
frequently reported, and “nothing is done to shut them down.”
Stakeholders also expressed concern about regulation if different professional standards
existed for different entities. Many stakeholders felt that non-attorney ownership would create
“conflicts of interest in the fiduciary duties owed to clients,” regardless of the rules created.
OPPORTUNITIES FOR IMPLEMENTATION
Most of the focus-group discussion and survey responses around implementation focused not
on non-attorney ownership but on how to increase legal services for low-income Texans. When
asked about opportunities for implementation of non-attorney ownership, stakeholders
reiterated that there are not enough programs and services available to meet the current needs
of low-income Texans. One stakeholder noted that “there are some good models that have
been used by LSC-funded organizations […] Take the best aspects of those and expand to other
areas while preserving the scaffolding that supervision, training, and lawyer support provide.”
Stakeholders suggested increasing incentives and support for pro-bono and fortifying
relationships between law schools and legal service providers. Stakeholders identified four
areas that are ripe for service expansion: improving referral networks, legal kiosks, medical-
legal partnerships, and improving referrals from the bench to extrajudicial programs and
services. One stakeholder noted: “The leaders of law school pro bono programs […] see low-
income clients up close and have experience in helping law students serve them. In many ways,
an inexperienced law student may be similar to a paraprofessional.”
26
Stakeholders recommended that providers coordinate on larger issues and take a “collaborative
and holistic approach” to legal services, partnering with social services and other providers to
provide help to address needs of low-income populations. One stakeholder noted that
partnerships would allow for “wrap around services” which could elevate a person’s life by
providing “resources for more than just legal obstacles.”
Stakeholders opined that fee reforms, such as allowing organizations to charge commissions,
could help expand access for low-income Texans. They also recommended sliding scale fee
structures.
FUTURE COLLABORATION BETWEEN THE COMMISSION AND JUSTICE SYSTEM
STAKEHOLDERS
Stakeholders provided many solutions for the Commission to consider in addition to
paraprofessionals and non-attorney ownership to assist in address the justice gap. Some of
these suggestions are included here as areas for potential opportunity. They include:
• Process simplification, including: making legal information more available; redesigning
citations and court forms; creating better technology solutions to connect individuals in
need with available programs and services; reducing initial disclosure requirements;
improving self-service tools, websites, and educational modules; and reducing the
number of interactions a litigant must have with the court.
• Legal information hubs or kiosks in the community where people can obtain information
about their legal issues.
• Creating incentives for attorneys to take cases pro bono. Some suggested allowing pro
bono hours to convert to CLE hours, bar dues being waived if an attorney performed a
certain number of pro bono hours, and incentives for law firms and attorneys who reach
certain pro bono benchmarks.
• Instituting mandatory pro bono.
• Increasing funding for existing legal services providers and providing more structural
support to them.
• Creating a pathway for Bar exam “near passers” who have a law degree from an ABA-
accredited law school to become paraprofessionals. They could work under the
supervision of an attorney for a certain amount of time, after which they would be a
fully licensed attorney. This would allow them to work and make money, instead of
studying for the Bar full-time or giving up on the practice of law.
27
Stakeholders expressed significant interest in this project and were invested in seeing it
through. They asked to be included in the conversation as it progressed. Individuals affiliated
with Texas law schools seemed excited and willing to host education programs, noting that they
have significant training materials and expansive clinic opportunities already in place for
students. Legal aid providers and nonprofits would like to be a part of the discussion regarding
income eligibility. Many stakeholders noted that the current income threshold is very low and
significant numbers of Texans are slightly above the line but are still unable to afford private
counsel.
WORK OF THE ACCESS TO LEGAL SERVICES WORKING GROUP
The Working Group was a guiding body for this project, formed to assist the Commission in
making ultimate recommendations to the Supreme Court. The Working Group met five times in
2023. Over the course of these meetings, members discussed the justice gap and potential
ways to address it in Texas, received information from guest speakers (including individuals
from jurisdictions that have implemented legal reform involving paraprofessionals), heard
updates from the Subcommittees, provided feedback and suggestions to guide the
Subcommittees’ work, and discussed and voted on Subcommittee proposals.
• January 26, 2023: Organizational meeting, information sharing by Professor Rebecca
Sandefur, Lucy Ricca, Professor Stacy Butler, and Nickole Nelson.
• April 26, 2023: Subcommittee reports, discussion regarding, among other things,
communications and outreach, as well as stakeholder feedback.
• July 27, 2023: Subcommittee reports, discussion, communication update, stakeholder
feedback report.
• September 26, 2023: Subcommittee reports, discussion, votes.
• November 2, 2023: Subcommittee reports and recommendations, discussion, votes,
approval of certain recommendations.
Materials from the five Working Group meetings, including agendas, materials, minutes, and
recordings are available here. A survey of Working Group members was conducted after the
November 2, 2023 meeting, as described and with results reported in Appendix D.
28
ACCESS TO LEGAL SERVICES WORKING GROUP SUBCOMMITTEES
The Working Group formed three Subcommittees, each of which was tasked with specific
elements of the Texas Supreme Court’s charge:
1. Scope of Practice Subcommittee
2. Paraprofessional Licensing Subcommittee
3. Non-Attorney Ownership Subcommittee
The Subcommittees spent significant time developing recommendations, learning from
representatives from other states that had undertaken regulatory reforms, researching Texas
rules and statutes that would be impacted by regulatory reform, and evaluating current Texas
regulatory frameworks that could be adapted to incorporate regulatory reform. The work and
research of each Subcommittee is summarized below. Recommendations are available here.
SCOPE OF PRACTICE SUBCOMMITTEE
The Scope of Practice Subcommittee analyzed whether qualified paraprofessionals should be
licensed to provide limited legal services directly to low-income Texans, and, if such services are
authorized, (1) potential limits on the type of work that could be done and the areas of law in
which such work could be done by the paraprofessionals, (2) potential rule revisions needed to
authorize and define procedures for this limited practice of law, (3) eligibility criteria for clients
of the paraprofessionals, and (4) potential compensation sources.
29
SCOPE OF PRACTICE SUBCOMMITTEE MEMBERSHIP AND MEETINGS
Figure 7. Scope of Practice Subcommittee Membership
The Subcommittee met eight times on the following dates:
• March 20, 2023: organizational meeting and discussion regarding forming subgroups
to focus on specific subject matter areas contemplated for paraprofessionals. The
recording of this Subcommittee meeting, an agenda, and minutes are available here.
• April 14, 2023: Subgroup reports, Community Justice Worker presentation by
Professor Shawn Slack, discussion of potential rule amendments. The recording of
this Subcommittee meeting, an agenda, and minutes are available here.
Scope of Practice Subcommittee
Kennon Wooten (Chair), Austin
Sandy Garcia Hoy, Austin
Paul Furrh (Vice-Chair), Houston
Paige D. Hoyt, Weatherford
Jonathan Bates, Dallas
Misti Janes, Austin
Anne Chandler, Houston
John Jones, Katy
Hon. Nicholas Chu, Austin*
Richard LaVallo, Austin
Robert Doggett, Austin
Hon. Lora Livingston, Austin
Katie Fillmore, Austin
Rick Melamed, Bellaire
Hon. Phyllis Martinez Gonzalez, El Paso
Karen Miller, Austin
John J. Grieger, Wichita Falls
Prof. Shawn Slack, Austin
Hon. Sylvia Holmes, Austin*
Prof. Mary Spector, Dallas
Hon. Justice Deborah Hankinson, Ret., Dallas
Hon. Polly Spencer, San Antonio
Rob Henneke, Austin/Kerrville (formerly)
Terry Tottenham, Austin
Craig Hopper, Austin
Kimberly Pack Wilson, Stephenville
Hon. Phyllis Martinez Gonzalez, El Paso
*In September 2023, Hon. Nick Chu resigned from the Scope of Practice Subcommittee (due to a new
judicial position and associated responsibilities) and was replaced by Hon. Sylvia Holmes.
30
• June 2, 2023: Formation of new subgroup—Consumer Debt Subgroup, discussion of
Family Law Subgroup recommendations, presentation by Katie Fillmore on Texas
laws potentially impacted or implicated by contemplated proposals. The recording of
this Subcommittee meeting, an agenda, and minutes are available here.
• June 27, 2023: Continued discussion of Community Justice Worker model, Texas
laws impacted, and Family Law Subgroup recommendations, approval of
Probate/Estate Subgroup recommendations. The recording of this Subcommittee
meeting, an agenda, and minutes are available here.
• August 25, 2023: Report from Members of the Immigration & Nationality Law
Section of the State Bar of Texas and the American Immigration Lawyers Association
(AILA TX) Texas Chapter, discussion of Housing Subgroup and Consumer-Debt
Subgroup work. The recording of this Subcommittee meeting, an agenda, and
minutes are available here.
• September 22, 2023: Discussion of Housing Subgroup work, discussion of
recommendations from Consumer-Debt Subgroup. The recording of this
Subcommittee meeting, an agenda, and minutes are available here.
• October 10, 2023: Review and discussion of proposed rules, discussion regarding
eligibility criteria for clients. The recording of this Subcommittee meeting, an
agenda, and minutes are available here.
• October 23, 2023: Presentation from Falak Momin, St. Mary’s University School of
Law, continued discussion and votes on proposed rules and eligibility criteria. The
recording of this Subcommittee meeting, an agenda, and minutes are available here.
SCOPE OF PRACTICE SUBCOMMITTEE WORK
The Subcommittee identified areas of high legal need for low-income Texans. The
Subcommittee looked to many sources to identify areas of need, including stakeholder
feedback, data from the Office of Court Administration,
62
data from the Texas Access to Justice
Foundation,
63
and the 2022 Legal Service Corporation Legal Needs Report.
64
To maximize
62
See Texas Judicial Branch, Office of Court Administration, Annual Statistical Report for the Texas Judiciary
(FY 2022), available at https://www.txcourts.gov/media/1456803/ar-statistical-fy-22-final.pdf (last accessed
Dec. 5, 2023).
63
Roger Enriquez et al., Texas Unmet Legal Needs Survey , at 2 (July 22, 2015), available at
https://www.teajf.org/news/docs/Final_TAJF_Report_summer_2015.pdf (last accessed Dec. 5, 2023)
(hereinafter Texas Unmet Legal Needs Survey).
64
The Justice Gap, supra, note 1, at 33.
31
productivity and efficiency, members broke into Subgroups that aligned with each of the four
areas of law identified:
1. Family Law
2. Housing/Eviction
3. Probate and Estate
4. Consumer Debt
The Subgroup members met and worked between Subcommittee meetings. The Subgroups
made specific recommendations about tasks that paraprofessionals could undertake in each
area. Subcommittee members voted on Subgroup recommendations during Subcommittee
meetings; however, final Subcommittee votes on the Family Law Subgroup’s recommendations
occurred via email, with assistance from Jonathan Bates. Proposed rules were developed based
on recommendations approved by the Subcommittee and on feedback from the Working
Group. Subcommittee members voted on components of the proposed rules, including
eligibility criteria, during the meeting on October 23, 2023. Final votes on the proposed rules, as
well as on potential compensation sources for paraprofessionals providing limited legal
services, occurred via an electronic survey conducted after the meeting on October 23, 2023.
(The survey questions and associated votes are summarized in a memo that was considered by
the Working Group during its final meeting on November 2, 2023.)
The Subcommittee recommended a new scope-of-practice rule addressing limited legal services
that could be provided by licensed paraprofessionals directly to low-income Texans, in the
areas of family law, probate and estate law, and consumer-debt law. The proposed rule does
not address eviction cases specifically because existing Texas rules allow representation by, and
assistance from, paraprofessionals in eviction cases in justice courts.
The Subcommittee assessed whether and to what extent Texas paraprofessionals could
function in a manner similar to the Community Justice Workers in Alaska (e.g., by working with
legal aid entities and other Texas nonprofit entities that provide legal services to low-income
Texans) and developed recommendations for how a Community Justice Worker program could
operate in justice courts. The Subcommittee considered amending existing Texas Rules of Civil
Procedure that allow specified representation by and assistance from paraprofessionals in
justice courts, not only to incorporate standards for Community Justice Workers in Texas, but
also to incorporate standards for paraprofessionals licensed to provide limited legal services in
particular practice areas, to modify standards governing assistance from paraprofessionals, and
to modify standards for citations issued to defendants in eviction cases in justice courts.
Subcommittee members had diverse views about how to define “low income” in this context,
and two Subcommittee members expressed the belief that the paraprofessional legal services
32
contemplated should not be restricted to low-income Texans. Information considered during
discussions of eligibility criteria included the following summaries of approaches taken:
1. Texas Access to Justice Foundation (TAJF): TAJF “is the leading funding source for legal
aid in Texas.”
65
Annually, it “adopts criteria relating to income, assets, and liabilities
defining the indigent persons eligible to benefit from TAJF grants. Household income‐
eligibility guidelines are based on the Department of Health and Human Services’
(DHHS) most recent federal poverty guidelines.”
66
2. Texas Legal Services Center (TLSC): TLSC serves clients within 200% of the federal
poverty guidelines, and also has grants with specific funding criteria. Most of TLSC’s
funding restricts services to clients within 125% of federal poverty guidelines. This is
lower than the LSC standard of 187% of the federal poverty guidelines and has been
described as extremely low income. For people meeting these criteria, paying for legal
services usually means going without some other basic necessity, such as utilities, food,
or medicine. This chart breaks down what it means to be within 125% of the federal
poverty guidelines.
125% of Federal Poverty Guidelines
Number of
People in the
household
Poverty
Guidelines
Yearly
Income
Poverty
Guidelines
Monthly
Income
Poverty
Guidelines
Weekly
Income
1
$18,225
$1,518.75
$350.48
2
$24,650
$2,054.17
$474.04
3
$31,075
$2,589.58
$597.60
4
$37,500
$3,125.00
$721.15
Figure 8. Income Eligibility Guidelines
3. Texas RioGrande Legal Aid (TRLA): Although different funding sources have different
limits for legal aid entities like TRLA, the standard here is 200% of the federal poverty
guidelines.
4. Houston Volunteer Lawyers (HVL): HVL’s general rule is to strive to help families at 200%
or less of the federal poverty guidelines. Like other entities increasing access to justice in
65
Texas Access to Justice Foundation, https://www.teajf.org (last accessed Dec. 5, 2023).
66
Texas Access to Justice Foundation, 2023 Income & Asset Requirements for Persons to be Eligible
For Assistance with Foundation Grants, at 1, available at
https://www.teajf.org/grants/docs/2023/2023%20TAJF%20Grant%20Eligibility%20Income%20Guideline.pdf (last
accessed Dec. 5, 2023).
33
our state, HVL also manages grants with different income and asset tests that must be
applied.
5. San Antonio Legal Services Association (SALSA): Generally, SALSA applies a standard of
300% of the federal poverty limit. Some programs have lower limitations. But SALSA
strives to marry funding to get everything as close to 300% as possible to maximize
clients served.
6. Unfunded Pro Bono Providers: Texas has several pro bono providers that do not receive
funding and thus have no funding criteria to guide their client base. For example, the
State Bar of Texas Appellate Section has an active program that provides representation
to low-income Texans in the appellate courts on a purely volunteer basis. The program
does not use precise income testing but considers income as one factor for admission
into the program. The program often considers a Rule 145 affidavit in its analysis and
widely considers clients at 400% of federal poverty guidelines as qualifying under the right
circumstances. This chart demonstrates what these figures mean in 2023:
The Working Group anticipates that many licensed paraprofessionals will be employed by legal
aid and other nonprofit entities. There are many funding opportunities from the federal
government that may provide funding to organizations that would employ paraprofessionals to
provide legal services to low-income Texans. These below funding sources offer new
opportunities for entities and recommend expansion of underutilized sources.
Figure 9. 2023 Federal Poverty Level and Annual Income
34
Federal funding streams may be categorized as:
1. Direct or discretionary grants, and
2. Federal “pass-through” funds.
Pass-through funds are granted to state and local governments, often known as formula, block,
or open-end reimbursement grants. These governments administer funds by sub-granting to
eligible local entities.
Discretionary grants are a competitive merit-based award of funds to eligible applicants. Here, a
Federal grantmaking agency accepts applications from across the country for discretionary
funding, determines eligibility, reviews the contents of the application, and determines which
applicants receive awards and the amount of funding to be awarded. Legal aid programs and
courts routinely apply to federal agencies for these funds, including, for example, the DOJ
Bureau of Justice Assistance’s Veterans Treatment Court Discretionary Grant Program and
HUD’s Eviction Prevention Grant Program.
Pass-through funding is also available for state and local governments. One of the key
differences between pass-through and discretionary funds is to whom the courts and legal aid
programs apply: pass-through fund applications are made to the administering state and/or
local government agencies. And while the amount each jurisdiction receives and spending
constraints are set by federal statute and federal agencies’ rules and guidance, all pass-through
funds have varying levels of flexibility to spend funds based on local priorities. Familiar
examples of pass-through funds include the DOJ Office on Violence Against Women STOP
Formula Grant Funds and state commission administered AmeriCorps funds.
For both categories of funds, courts and legal aid programs may be eligible as the applicant or
in collaboration with or as a subrecipient or subcontractor to an eligible partner. See examples
of potential funding opportunities in Appendix E.
When considering how licensed paraprofessionals would be compensated for their services,
Subcommittee members responded to a survey question asking them to indicate whether
compensation for licensed paraprofessionals should be limited to certain sources, such as
government and nonprofit funds. About half of the Subcommittee indicated that they prefer to
limit compensation to certain sources. Some liked the idea of a sliding-scale basis. Other
Subcommittee members expressed concern about paraprofessionals competing with legal aid
organizations for funds. Half of the Subcommittee did not think that compensation should be
limited to certain sources.
The Subcommittee also considered potential rule and statutory revisions that would be needed
to authorize and define procedures for the limited practice of law by licensed
35
paraprofessionals. Research on potential rule and statutory impacts of the proposal is
contained in Appendix F of this Report.
PARAPROFESSIONAL LICENSING SUBCOMMITTEE
The Paraprofessional Licensing Subcommittee was tasked with making recommendations about
the content and structure of proposed rules or statutory amendments that would be necessary
to permit licensing of qualified non-attorney paraprofessionals and/or entities who could
provide limited legal services directly to low-income Texans. The Subcommittee considered
scope and entry qualifications for those regulated, complaints and discipline and ongoing
reporting requirements to monitor the success of any program established.
PARAPROFESSIONAL LICENSING SUBCOMMITTEE MEMBERSHIP AND MEETINGS
Figure 10. Paraprofessional Licensing Subcommittee
The Paraprofessional Licensing Subcommittee met seven times on the following dates:
• May 17, 2023: Organizational meeting, presentation by NCSC on licensing requirements
in other states, discussion of existing regulation of non-attorneys in Texas. The recording
of this Subcommittee meeting, an agenda, and minutes are available here.
• June 7, 2023: Discussion of examination requirements, Judicial Branch Certification
Commission regulatory structure, Texas and national paralegal certification and
specialization options. The recording of this Subcommittee meeting, an agenda, and
minutes are available here.
• July 13, 2023: Discussion of draft rules regarding paraprofessional qualifications and
discipline. The recording of this Subcommittee meeting, an agenda, and minutes are
available here.
Paraprofessional Licensing Subcommittee
Lisa Bowlin Hobbs, Chair, Austin
Leo D. Figueroa, Austin
Linda Acevedo, Austin
Hon. Sid Harle, San Antonio
Dr. Lynn Crossett, San Marcos
Nahdiah Hoang, Austin
Robert Doggett, Austin
Ellen Lockwood, San Antonio
Hon. Royal Furgeson, Dallas
36
• August 28, 2023: Guests from the Oregon State Bar and Oregon Paraprofessional
Licensing Implementation Committee to present on non-exam eligibility, discussion of
proposed CLE recommendation. The recording of this Subcommittee meeting, an
agenda, and minutes are available here.
• September 25, 2023: Discussion of draft qualification and discipline rules, discussion of
liability insurance requirements. The recording of this Subcommittee meeting, an
agenda, and minutes are available here.
• October 16, 2023: Further discussion of draft qualifications, character and fitness, CLE
recommendations, dues, and reporting. The recording of this Subcommittee meeting, an
agenda, and minutes are available here.
• October 24, 2023: Review of draft rules, including for Community Justice Workers. The
recording of this Subcommittee meeting, an agenda, and minutes are available here.
PARAPROFESSIONAL LICENSING SUBCOMMITTEE WORK
The Subcommittee developed recommendations in the following areas:
• Qualifications for paraprofessional applicants
• Examination requirements
• Character and fitness assessment for paraprofessional applicants
• Code of ethics for licensed paraprofessionals
• Discipline for licensed paraprofessionals
• Continuing legal education for licensed paraprofessionals
• Annual reporting requirements for licensed paraprofessionals
• Liability insurance considerations for licensed paraprofessionals
In developing these recommendations, the Subcommittee reviewed licensing requirements in
other jurisdictions that permit paraprofessional practice and looked to current Texas regulatory
structures that oversee non-attorney legal system actors, such as paralegals, guardians, court
reporters, court interpreters, and process servers.
The Subcommittee used various Texas-based models to guide its work and recommendations
including:
• State Bar of Texas Paralegal Division qualifications
• Texas Board of Legal Specialization subject matter-based requirements
• Texas Board of Law Examiners character and fitness assessment requirements
37
• The Judicial Branch Certification Commission (JBCC) disciplinary process for court-
appointed guardians
In developing recommendations, the Subcommittee balanced the need for appropriate
oversight and qualification with the need to make entry to the legal paraprofessional profession
accessible.
NON-ATTORNEY OWNERSHIP SUBCOMMITTEE
The Non-Attorney Ownership Subcommittee was tasked with making recommendations
regarding non-attorney ownership of law firms. The Subcommittee studied current Texas
statutes and rules that would need to be modified including the purpose and history of these
statutes and rules; investigation of structures to protect attorney independence in entities that
allow non-attorney ownership or profit sharing; and discussion of benefits and risks of such
entities, particularly as these entities related to expanding access to low-income populations.
NON-ATTORNEY OWNERSHIP SUBCOMMITTEE MEMBERSHIP AND MEETINGS
Figure 11. Non-Attorney Ownership Subcommittee
The Non-Attorney Ownership Subcommittee met eight times on the following dates:
• March 31, 2023: Organizational meeting. The recording of this Subcommittee meeting,
an agenda, and minutes are available here.
• May 3, 2023: Overview of Arizona and Utah reforms; brainstorming. The recording of
this Subcommittee meeting, an agenda, and minutes are available here.
• June 22, 2023: Guest speaker Noella Sudbury and initial discussion of draft working
proposal document. The recording of this Subcommittee meeting, an agenda, and
minutes are available here.
• July 12, 2023: Discussion of protections for attorney independence. The recording of this
Subcommittee meeting, an agenda, and minutes are available here.
Non-Attorney Ownership Subcommittee
Rose Benavidez, Rio Grande City
Prof. Renee Knake Jefferson, Houston
Prof. Susan Fortney, Fort Worth
Hon. Michael Massengale (Chair), Houston
Hon. Sid Harle, San Antonio
Chris Nickelson, Fort Worth
Monica Karuturi, Houston
Maria Thomas Jones, Fort Worth
38
• August 21, 2023: Informal discussion of regulating entity and additional desirable
criteria, restrictions, or prohibitions. The recording of this Subcommittee meeting, an
agenda, and minutes are available here.
• September 19, 2023: Continued informal discussion of regulating entity and additional
desirable criteria, restrictions, or prohibitions. The recording of this Subcommittee
meeting, an agenda, and minutes are available here.
• October 13, 2023: Discussion of whether and how the proposal should include criteria
for “providing legal services to low-income Texans,” restrictions on who can own
entities, recommendations for protecting attorney independence, discussion on
intersection between this Subcommittee and other Subcommittee recommendations.
The recording of this Subcommittee meeting, an agenda, and minutes are available
here.
• October 18, 2023: Review and discussion of the Subcommittee’s final report to the
Working Group. The recording of this Subcommittee meeting, an agenda, and minutes
are available here.
NON-ATTORNEY OWNERSHIP SUBCOMMITTEE WORK
To guide its work, the Non-Attorney Ownership Subcommittee reviewed the current Texas
regulatory landscape, evaluated the benefits and risks of permitting non-attorney ownership of
firms providing legal services, and considered the potential for innovation to improve access to
justice that might occur if exceptions were allowed in the current rules. The Subcommittee
examined existing rules and statutes that might be implicated, with a focus on Rule 5.04 of the
Texas Disciplinary Rules of Professional Conduct.
The Subcommittee studied the way in which the existing rules and statutes protect attorney
independence and how attorney independence could be ensured through other models
including attorney compliance officers in entities permitting non-attorney ownership or profit
sharing and Proactive Management-Based Regulation (PMBR).
The Subcommittee also examined risks and benefits of non-attorney ownership, including:
Potential Benefits
• Expanded access to justice through innovation: Proponents contend that allowing ABSs
will incentivize innovation in the delivery of legal services, which can result in expanding
access to justice. People could gain access to civil legal services when they otherwise
would be forced to represent themselves without assistance, or entirely forgo civil legal
remedies. Risks to consumers can be minimized through safeguards, such as ensuring
protection for attorneys’ professional independence, and by licensing and limiting tasks
39
that can be undertaken by a paraprofessional. Reporting requirements, such as those in
Utah, permit information gathering about the types of entities that provide quality low-
or no-cost services, and consumer complaints.
• Increasing law firm capacity: Allowing investment from non-attorneys can increase a
law firm’s capacity, including firms that provide legal services to low-income
populations.
67
Potential Risks
68
• Compromising attorney competence and independence: One purpose of ABA Model
Rule 5.4 is “to prevent nonlawyers from interfering with the lawyer’s independent
judgment,”
69
and eliminating or limiting the comparable Texas rule may create conflicts
between a lawyer’s ethical obligations to clients and financial obligations to firm
owners. States that permit non-attorney ownership ameliorate the risk of client harm in
different ways, including reporting based on the risk of consumer harm, designating
compliance lawyers, and providing a forum for consumer complaints.
70
• Potential for limited effectiveness: Opponents contend that permitting non-attorney
ownership may not increase access for low-income populations because it does not lead
to more attorneys or entities that provide free or low-cost legal services. Steven
Younger notes that in Australia, and in England and Wales, where non-attorney
ownership is permitted, the justice gap has not closed.
71
However, in those jurisdictions,
the ABSs are primarily profit-based.
72
This also may be true of the ABSs operating in
Arizona and Utah, as many are owned by private equity firms, litigation-finance
companies, hedge funds, and alternative legal service providers.
73
67
See Ralph Baxter, Dereliction of Duty: State-Bar Inaction in Response to America’s Access-to-Justice Crisis, Yale
Law Journal Forum, at 253 (Oct. 19, 2022), available at https://www.yalelawjournal.org/forum/dereliction-of-duty
(last accessed Dec. 5, 2023).
68
For general discussion of counterarguments against the risks, see Jessica Bednarz, A Closer Look: Three Common
Arguments Against Regulatory Reform, (June 13, 2023), available at https://iaals.du.edu/blog/closer-look-three-
common-arguments-against-regulatory-reform (last accessed Dec. 5, 2023).
69
Steven Younger, The Pitfalls and False Promises of Nonlawyer Ownership of Law Firms, The Yale Law Journal
Forum, at 267-68 (Oct. 19, 2022), available at https://www.yalelawjournal.org/forum/the-pitfalls-and-false-
promises-of-nonlawyer-ownership-of-law-firms (last accessed Dec. 5, 2023) (hereinafter Younger).
70
See Utah Office of Legal Services Innovation, supra, note 48; Ariz. R. Sup. Ct. 31.1, available at
https://casetext.com/rule/arizona-court-rules/arizona-rules-of-the-supreme-court/regulation-of-the-practice-of-
law/supreme-court-jurisdiction-over-the-practice-of-law/rule-311-authorized-practice-of-law (last accessed Dec. 5,
2023).
71
Younger, supra, note 69, at 267-68.
72
Id.
73
Id. at 277.
40
• Potential for exploitation: Some have expressed concern that permitting non-attorneys
to take an economic interest in entities providing services to low-income clients may
increase the chances of predatory or exploitative practices.
• Concern about profiting from low-income clients: Various stakeholders have expressed
discomfort about the concept of for-profit non-attorney-owned firms providing legal
services to low-income clients.
The Subcommittee reviewed Arizona and Utah statutes and rules governing non-attorney
ownership and protections for attorney independence and consumer protection in place in
these jurisdictions and looked at entities in Arizona and Utah that might act as models to
provide services to low-income individuals.
Finally, the Subcommittee solicited and considered feedback from the Family Law Section,
Immigration Law Section, and Tax Law Section of the State Bar of Texas. This feedback is
included in the stakeholder feedback information in Appendix B.
A full memo outlining the Non-Attorney Ownership Subcommittee’s research on the regulatory
status quo, Texas rules and statutes, and attorney independence is included in this report as
Appendix G.
WORKING GROUP RECOMMENDATIONS
The following sections summarize the Working Group’s recommendations developed in
response to the Supreme Court’s charge in the letter dated October 24, 2022, as approved in
votes taken at the final Working Group meeting on November 2, 2023, and in a follow-up
survey conducted after the meeting.
74
THE ROLE OF THE JUDICIAL BRANCH CERTIFICATION COMMISSION
The Working Group recommends that the Judicial Branch Certification Commission (JBCC) act as
the regulatory agency to administer these proposals.
75
The JBCC is administratively attached to
OCA.
76
The JBCC is the most suitable pre-existing regulatory entity to administer the process of
approving, licensing, and overseeing legal paraprofessionals and non-attorney-owned firms
74
More information about the Working Group’s discussion of non-attorney ownership proposals and results of the
Working Group survey on the components of those proposals is available in Appendix G.
75
The JBCC is governed generally by chapter 152 of the Government Code. See also Texas Judicial Branch, Judicial
Branch Certification Commission, www.txcourts.gov/jbcc/jbcc-statutes-rules-policies/ (last accessed Dec. 5, 2023)
(collecting statutes, rules, and policies applicable or related to the JBCC). The JBCC is composed of nine members
appointed by the Supreme Court. Tex. Gov’t Code § 152.052.
76
See Tex. Gov’t Code § 152.103; see also Rules of the Judicial Branch Certification Commission, Rule 2.3, available
at https://www.txcourts.gov/media/1457541/jbcc-rules.pdf (last accessed Dec. 5, 2023).
41
providing legal services.
77
The Supreme Court is authorized by statute to assign regulatory
programs to the JBCC,
78
and to promulgate rules to be administered by it.
79
DEFINITION OF LOW-INCOME
The Supreme Court’s charge asked the Commission to make proposals about paraprofessionals
and non-attorney ownership that were designed to increase access for “low-income”
80
Texans.
With this in mind, the Working Group studied and considered how "low-income” is defined in
Texas and nationally. There is not one uniform definition. The Working Group reviewed the
eligibility threshold for legal aid organizations funded by LSC which are currently 125% of the
federal poverty guidelines, as well as eligibility criteria for the various funding sources discussed
in the overview of the Access to Legal Services Working Group and the Scope of Practice
Subcommittee’s work.
For these proposals, the Working Group recommends defining “low-income” as at or below
200% of the federal poverty guidelines as determined by the United States Department of
Health and Human Services. The Working Group further recommends that income be
established through a Texas resident’s self-certification in a sworn affidavit or in an unsworn
declaration that complies with Chapter 132 of the Texas Civil Practice and Remedies Code. This
recommendation is reflected in the proposed draft rules included in Appendix A of this report.
LICENSED PARAPROFESSIONALS
Consistent with recommendations from the Scope of Practice Subcommittee, the Working
Group recommends that the Texas Supreme Court license paraprofessionals to engage in
particular types of legal representation in certain substantive legal areas. As discussed more
77
The JBCC qualifies well on all four criteria identified by the Non-Attorney Ownership Subcommittee as important
factors relating to regulating entities: public perception, available resources, existing legal authority, and capacity
to increase scale. These criteria are important for oversight and regulation of paraprofessionals as well. Notably
with respect to available resources, the JBCC is required to “set fees in amounts reasonable and necessary to cover
the costs of administering the programs or activities administered by the commission, including examinations and
issuance and renewal of certifications, registrations, and licenses.” See Tex. Gov’t Code § 152.151(a)(4). Other
discussed options for an oversight body included the Access to Justice Commission, the Legal Access Division of the
State Bar, or an entirely new office.
78
See id. § 152.051.
79
The JBCC operates subject to rules promulgated by the Supreme Court. See Misc. Docket No. 23-9094 (Tex. Nov.
17, 2023) (order approving rules), available at https://www.txcourts.gov/media/1457541/jbcc-rules.pdf (last
accessed Dec. 5, 2023); see also Tex. Gov’t Code § 152.051. These rules could be supplemented by the Supreme
Court (or with the Court’s authorization, by the JBCC) to include rules for the examination and certification of non-
lawyer-owned entities proposing to provide legal services, see Tex. Gov’t Code § 152.101, ineligibility criteria for
applicants, see id. § 152.203, and continuing education, see id. § 152.204. The JBCC is required to establish
qualifications for certification, registration, and licensing, see id. § 152.151(a)(5); it must develop and recommend
a code of ethics for those it regulates, see id. § 152.205; and it may establish advisory boards to advise it on policy
and those regulated, see id. § 152.152.
80
Supreme Court Letter, supra, note 15.
42
fully below, the Working Group recommends that some of these tasks would require attorney
supervision, and some could be performed independently.
PARAPROFESSIONAL SCOPE OF PRACTICE
Paraprofessional practice should generally be limited to specific subject matter areas where
there is high demand for legal help from low-income individuals. The Working Group
recommends that paraprofessionals be licensed in one or more of the following subject matter
areas: family law, probate and estate, and consumer-debt law. The Working Group has defined,
voted on, and approved specific tasks that paraprofessionals could be allowed to perform both
with and without attorney supervision in each of these subject matter areas as outlined below.
The recommendations are not meant to limit, in any way, the work that paraprofessionals,
including paralegals and legal assistants, can already do in Texas with attorney supervision.
Relatedly, the Working Group also voted on and approved a proposed new scope-of-practice
rule and amendments to the existing justice-court rules reflecting, among other things, the
scope-of-practice recommendations in each substantive area of law (included in Appendix A).
GENERAL DEFINITIONS AND PROVISIONS RELATED TO SCOPE OF PRACTICE
Uncontested. In these recommendations, “uncontested” means cases in which there is no
opposition by another party to any issue before the court. Uncontested cases include no-
answer default-judgment cases. The filing of a general denial without a request for affirmative
relief does not cause a case to be contested unless the general denial includes a contrary
position on an issue before the court. The serving of process upon a party does not cause the
case to be contested. A case becomes “contested” when any party files any pleading or motion
with the court which takes a contrary position on any issue before the court or otherwise
communicates with the court, in a hearing or otherwise, any contrary position on any issue
before the court.
Contested. In these recommendations, a case becomes “contested” when any party does one
of the following actions:
• Files any pleading or motion with the court which takes a contrary position on any issue
before the court; or
• Communicates with the court, in a hearing or otherwise, any contrary position on any
issue before the court.
Disclosures. The Working Group recommended that paraprofessionals must make certain
written disclosures (in engagement agreements) about the scope of their practice and must
take certain steps to withdraw and/or otherwise protect client interests if the representation
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exceeds the scope of their licensure. For example, if a case becomes contested or evolves to
include issues that are outside the scope of a particular subject matter area. The disclosure
provision is based on attorney rules about withdrawal but contains additional guidance to
ensure client interests are protected and paraprofessionals understand their responsibilities.
The recommended disclosures are captured in the proposed rules in Appendix A.
With attorney supervision. This means that an attorney reviews all documents before they are
filed by the paraprofessional and is available to answer any of the paraprofessional’s questions
relating to the tasks being completed with attorney supervision. The supervising attorney need
not be present for court appearances by the paraprofessional but must be identified in any
filings the paraprofessional handles with the attorney’s supervision.
FAMILY LAW
Without attorney supervision, paraprofessionals licensed in family law may do the following
things in uncontested divorce cases that do not involve suits affecting the parent-child
relationship and that have limited property issues (e.g., cases involving no third-party sale/title
transfer of real estate or division/transfer of retirement benefits owned by the parties):
(1) Assist a client with completing forms and file forms for the client in family-law matters
within the scope of this rule, if such forms have been approved by statute, the Supreme Court
of Texas, an organization the Supreme Court of Texas has tasked with generating such forms, or
any Texas court that has published such forms on the Office of Court Administration’s website
consistent with Texas Rule of Judicial Administration 10;
(2) Represent a client in uncontested courtroom proceedings (e.g., prove-up hearings or
scheduling conferences), including preparation of affidavits in support of uncontested
temporary orders and uncontested divorce decrees;
(3) Provide procedural information (as opposed to legal advice) to an otherwise
unrepresented litigant regarding procedural steps to be taken to initiate, advance, or finalize a
suit; and
(4) Communicate with court staff and an attorney or paraprofessional retained by the
opposing party regarding the issues described in (1)–(3) above.
With attorney supervision in uncontested suits under Title IV of the Texas Family Code and in
uncontested suits affecting the parent-child relationship (including uncontested suits under
Title I and V of the Texas Family Code) that involve only standard conservatorship provisions,
standard possession schedules, and guideline child support issues, paraprofessionals licensed in
family law may do the following things in the following types of cases:
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(1) Assist a client with completing forms and file forms for the client in family-law matters
within the scope of this rule, if such forms have been approved by statute, the Supreme Court
of Texas, an organization the Supreme Court of Texas has tasked with generating such forms, or
any Texas court that has published such forms on the Office of Court Administration’s website
consistent with Texas Rule of Judicial Administration 10;
(2) Represent a client in uncontested courtroom proceedings (e.g., prove-up hearings or
scheduling conferences), including through preparation of affidavits in support of uncontested
temporary orders and uncontested final orders;
(3) In addition to the matters described in (1)–(2) above, provide procedural information (as
opposed to legal advice) to an otherwise unrepresented litigant regarding procedural steps to
be taken to initiate, advance, or finalize a suit; and
(4) Communicate with court staff and an attorney or paraprofessional retained by the
opposing party regarding the issues described in (1)–(3) above;
PROBATE AND ESTATE LAW
Without attorney supervision, paraprofessionals licensed in estate planning and probate law
may do the following things:
(1) Assist a client with completing forms and file forms for the client in estate-planning or
probate-law matters within the scope of this rule, if such forms have been approved by statute,
the Supreme Court of Texas, an organization the Supreme Court of Texas has tasked with
generating such forms, or any Texas court that has published such forms on the Office of Court
Administration’s website consistent with Texas Rule of Judicial Administration 10;
(2) Represent a client in uncontested courtroom proceedings to the extent that such
proceedings pertain to a muniment of title;
(3) If and to the extent not covered by (1) above, assist a client with completing the
following forms and, as needed, file the following forms: a Health Insurance Portability and
Accountability Act (HIPAA) Release, Annual Reports of Person in Guardianship, a Medical Power
of Attorney (MPOA), a Declaration of Guardian, a Directive to Physicians (DTP), a Declaration
for Mental Health Treatment, Supported Decision Making Agreements (SDMA), a Statutory
Durable Power of Attorney (SDPOA), a Transfer on Death Deed (TODD), a Small Estate Affidavit
(SEA), and a Muniment of Title Application;
(4) In addition to the matters described in (1)–(3) above, provide procedural information (as
opposed to legal advice) to an otherwise unrepresented litigant regarding how to participate in
a probate or guardianship proceeding; and
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(5) Communicate with court staff and an attorney or paraprofessional retained by an
opposing party regarding the issues described in (1)–(4) above, provided that such
communication with court staff is limited to matters pertaining to Annual Reports of Person in
Guardianship, SEAs, and Muniment of Title Applications.
CONSUMER-DEBT LAW
Without attorney supervision, paraprofessionals licensed in consumer-debt law may do the
following things:
(1) Assist a client with completing forms and file forms for the client in consumer-debt-law
matters within the scope of this rule, if such forms have been approved by statute, the
Supreme Court of Texas, an organization the Supreme Court of Texas has tasked with
generating such forms, or any Texas court that has published such forms on the Office of Court
Administration’s website consistent with Texas Rule of Judicial Administration 10;
(2) Represent a client in uncontested courtroom proceedings;
(3) In a debt-claim case in justice court, appear for and represent any party who is an
individual (rather than any entity of any type), with any matter involved with the preparation,
litigation, and settlement of a debt-claim case, including by perfecting an appeal of a judgment
from justice court to county court and by handling any matter related to post-judgment
collection, discovery, and receiverships; and
(4) In addition to the matters described in subsections (1)–(3) above, provide procedural
information (as opposed to legal advice) to an otherwise unrepresented litigant regarding
procedural steps to be taken to initiate, advance, or finalize a suit; and
(5) Communicate with court staff and an attorney or paraprofessional retained by the
opposing party regarding the issues described in subsections (1)–(4) above.
JUSTICE COURT REPRESENTATION AND RULE AMENDMENTS
The following recommendations about Justice Court representation stem in part from the work
of the Housing Subgroup. Existing justice-court rules already allow an individual in justice court
cases to be (1) represented by an “authorized agent” in eviction cases (consistent with Section
24.011 of the Texas Property Code) and (2) assisted by a family member or other individuals in
all types of cases in justice court. Tex. R. Civ. P. 500.4(a), (c). The existing rules do not define
“authorized agent” and do not explain the difference between representation and assistance.
Regardless, because those rules allow paraprofessional representation of individuals in eviction
cases, the new scope-of-practice rule does not address eviction cases. Instead, proposed
amendments to Rule 500.4(a) expand representation by non-attorneys to include two new
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categories: (1) licensed paraprofessionals, who can provide representation within the scope of
their license (as described in the new scope-of-practice rule); and (2) Community Justice
Workers, who are envisioned as receiving licenses and training that are focused on specific
tasks, as providing representation in relation to those tasks alone, and as working under the
supervision of an attorney who is employed by a legal aid entity or other nonprofit entity.
Specifically, the Working Group adopted the following recommendations:
• Allow paraprofessional representation in justice-court cases if the representation is
within the scope of the paraprofessional licensure.
• Amend Texas Rule of Civil Procedure Rule 500.4(c) to permit assistance by non-
attorneys in justice-court cases unless the court finds good cause not to allow
assistance. (The current rule requires the court to make a finding of good cause before
allowing assistance.) The Working Group also recommends requiring that the party
being assisted be present at all proceedings at which such assistance is provided.
• Require citations in eviction cases to reference Rule 500.4 and TexasLawHelp.org to give
people information about assistance and representation options available.
• Allow task-specific, supervised representation by Community Justice Workers in all
types of justice-court cases. This recommendation is discussed more fully below.
These rule amendment recommendations are captured in the proposed rules in Appendix A.
COMMUNITY JUSTICE WORKER PROGRAM
The Working Group recommends amending existing justice court rules (set forth in Texas Rule
of Civil Procedure 500.4) to permit Community Justice Workers to practice on a limited basis in
all types of justice court cases, if they meet certain requirements. Specifically, these Community
Justice Workers would have to be licensed by the Supreme Court, would have to be supervised
by an attorney, and would have to completed training mandated by the Supreme Court.
Additionally, in this context, the supervising attorney would have to work for a legal aid entity
or other nonprofit entity, and the representation permitted would be confined to the tasks the
Community Justice Worker has been trained to complete in justice court cases.
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One Working Group member proposed also authorizing Community Justice Workers to represent clients in other
adjudicatory forums, including in administrative proceedings. The Court should consider using data from the new
program to consider whether expansion of the program could increase access to justice in other forums.
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LICENSING AND REGULATION OF PARAPROFESSIONALS
The Working Group recommends that licensing and regulating paraprofessionals encompass
the following areas:
• Qualification
• Examination
• Character and Fitness Assessment
• Continuing Legal Education
• Ethics Codes and Requirements
• Liability Insurance Considerations
• Annual Dues and Reporting
• Discipline
The Working Group developed recommendations in each of these areas, using existing Texas
regulatory structures as guideposts. Proposed rules encompassing these recommendations are
included as Appendix A of this report.
QUALIFICATIONS
Paraprofessional applicants should have a combination of training and subject-matter specific
expertise. The proposed qualifications for paraprofessionals were informed by from the Active
Membership criteria for the Paralegal Division of the Texas State Bar, the Texas Board of Legal
Specialization for paralegals, and contain new subject matter requirements based on subject
matter practice areas recommended for legal paraprofessionals.
To be considered for licensure, a paraprofessional applicant must meet the following
qualifications:
General Qualifications
An individual must have at least a high school education or equivalent and meet one of the
following criteria:
o be a Board-Certified Paralegal through the Texas Board of Legal Specialization;
o be a Certified Legal Assistant or Certified Paralegal through the National Association of
Legal Assistants;
o be a Registered Paralegal through National Federation of Paralegal Associations;
o have received a bachelor’s or higher degree in a field other than legal studies;
o have completed an ABA approved paralegal program/college;
o have completed a paralegal program/college that consists of a minimum of 60 semester
credit hours (or equivalent quarter hours) of which 15 are substantive legal courses;
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o have completed a paralegal program/college that consists of 15 semester credit hours
of substantive legal courses;
o have completed a paralegal program that requires a bachelor’s degree, associate’s
degree or higher AND consists of a minimum of 15 semester credit hours or a minimum
of 100 clock hours;
o have been employed as a paralegal for at least five consecutive years performing at
least 80% substantive legal work under direct supervision of an attorney;
o have a J.D. from an ABA-approved law school.
Subject Matter Specific Qualifications
A candidate must also meet one of the following criteria for the subject matter area in which
they are requesting licensure:
o Be a paralegal certified in the practice area for which they are seeking licensure by the
Texas Board of Legal Specialization.
o Have been employed as a paralegal in Texas with at least 50 percent of the candidate’s
practice for three (3) of the past five (5) years in the subject matter area for which the
candidate is seeking licensure.
o Have completed training approved by the JBCC in the specific subject matter area for
which they are seeking licensure.
The proposed rules in Appendix A contain definitions of “paralegal” and “substantive legal
work” related to the qualification provisions.
EXAMINATION
To be licensed as a legal paraprofessional, in addition to meeting the qualifications listed above,
candidates must:
(a.) Pass a one-hour examination that covers ethics rules for paraprofessionals, including
ethics related to paraprofessional scope of practice; and
(b.) Pass a one-hour competency examination that covers the subject matter area(s) in which
the candidate seeks to be licensed. The competency examination can be waived if:
(1)
the candidate has received a score of 260 on the Texas Bar Exam;
(2)
has taken another examination that tests competency in that subject matter, including
an exam by the Texas Board of Legal Specialization or the National Association of Legal
Assistants; or
(3)
otherwise meets a waiver standard set by the JBCC.
An applicant who, after a combined total of five examinations, has failed to pass the exams
above cannot become a licensed legal paraprofessional. For good cause, the JBCC may waive
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this prohibition.
The Working Group recommends limiting the examinations to one-hour to ensure that
requirements for entry do not create unnecessary barriers and to ensure that the examination
is tailored to test candidate knowledge of what they actually need to know to succeed as
paraprofessionals under the proposed program.
CHARACTER AND FITNESS ASSESSMENT
In addition to satisfying qualification and examination requirements, the Working Group
recommends that paraprofessional candidates be required to undergo a character and fitness
assessment that takes into account the following:
• Academic discipline.
• Criminal history information including a criminal background check.
• Professional licenses and certifications held by a candidate and any discipline history
related to those licenses or certifications.
• Reports of unauthorized practice of law either to the Unauthorized Practice of Law
Commission or the Paralegal Division of the State Bar of Texas.
• Some information about employment history.
• Military service information.
• Legal and financial information including information about participation in a legal
proceeding, child support judgments and arrearages, and past-due debts.
• Information about whether a candidate has ever offered immigration-based services or
used the term “notario” to refer to their work. (This is not disqualifying, particularly if
the person has acted as a licensed notario in a country in which this is permitted.)
This character and fitness assessment is intended to capture information that might limit a
person’s ability to serve as a paraprofessional, although it will not be as extensive as the
character and fitness assessment required for attorney Bar admission to avoid creating
unnecessary barriers.
A model character and fitness application is included in this report in Appendix A.
CODE OF ETHICS
The Working Group recommends that legal paraprofessionals be required to follow a code of
ethics. The draft code of ethics in the proposed rules (Appendix A) is modeled on the Paralegal
Division’s Canon of Paralegal Ethics
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and the confidentiality, conflict of interest, and
advertising provisions for attorneys in the Texas Disciplinary Rules of Professional Conduct.
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State Bar of Texas Paralegal Division, Code of Ethics and Professional Responsibility, available at
https://txpd.org/ethics-pages/professional-ethics-and-the-paralegal/ (last accessed Dec. 5, 2023).
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DISCIPLINE
The Working Group proposes that paraprofessional discipline be governed by the Rules of the
JBCC and the JBCC’s administrative dismissal policy. The JBCC rules cover complaint initiation
and review; administrative dismissal of improper complaints; settlement; hearing and appeals;
and sanctions. Using the JBCC rules will result in a process that ensures complaints against
paraprofessionals are examined and investigated thoroughly but do not rise to the level of
complexity of attorney discipline processes. This will also ensure consistency with other JBCC-
monitored professions.
CONTINUING LEGAL EDUCATION
The Working Group recommends that paraprofessionals complete ten hours of continuing legal
education annually, at least three of which be ethics education. This is a hybrid approach, that
takes into consideration current paralegal and Texas attorney CLE rules.
A draft CLE rule is included in Appendix A of this report.
LIABILITY INSURANCE CONSIDERATIONS
The Working Group does not recommend that paraprofessionals be required to carry liability
insurance. Although liability insurance is a best practice, Texas attorneys are not required to
carry liability insurance, and the Working Group prefers to track attorney requirements for
liability insurance, as is the standard in other states that permit paraprofessional practice.
ENTITIES WITH NON-ATTORNEY OWNERSHIP
PROPOSAL OVERVIEW
To address the Supreme Court’s request regarding non-attorney ownership of entities providing
legal services, the Working Group proposes the following:
• The Supreme Court could implement a pilot program to be overseen by the JBCC, which
is administered by the OCA.
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• An exception to application of Rule 5.04(a), (b), (d)(1), and (d)(2) of the Texas
Disciplinary Rules of Professional Conduct could be created for entities that are certified
by the JBCC and issued a license by the Supreme Court to perform a defined scope of
legal services, strictly limited to services requested by the entity and approved by the
JBCC.
83
Dental Support Organizations, which currently exist in Texas, might act as potential model for what non-attorney
investment might look like. See Tex. Bus. & Com. Code §§ 73.001-.008.
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• Application procedure and rule guidance could be promulgated by the Supreme Court
and the JBCC to ensure that approved entities actually will provide needed legal services
to low-income Texans. Application procedure and guidance should include the
following:
o The application will describe proposed legal services in detail, and demonstrate
how they will expand civil access to justice for low-income Texans.
o Each entity must disclose in the application any of its owners’ potential conflicts
with the proposed legal services.
o Each entity must make detailed commitments, provide regular reports, and
agree to JBCC monitoring to ensure that: (1) the entity provides quality legal
services to low-income Texans either pro bono or at affordable and transparent
rates, (2) the services are rendered in compliance with all attorney ethics rules,
which also will apply to the entity (including protection of attorney
independence and client confidentiality, advertising restrictions, avoidance of
conflicts of interest, and safekeeping of client funds), and (3) clients are
protected from exploitation and inferior services that cause more harm than
good.
o A Texas-licensed attorney must be employed by the entity, designated and
identifiable to the public as the person responsible for ensuring the entity’s
compliance with ethical and regulatory standards.
o All legal advice provided through the entity will be rendered by licensed
attorneys or paraprofessionals, and not by generative artificial intelligence or
algorithms unless reviewed for accuracy by a licensed attorney or
paraprofessional.
o Data collection, reporting, and monitoring will verify that low-income Texans are
receiving quality services and facilitate evaluation of renewal requests and
overall effectiveness of the pilot program.
o All clients of entities will receive information about how to lodge complaints with
the JBCC and will be contacted to provide feedback on the services received.
o Certain types of legal services or forms of delivery of legal services that present
special concerns will be considered for exclusion from the pilot project, as noted
in these recommendations.
o As reinforcement of this reform’s specific purpose to expand access for low-
income Texans, the JBCC should act as a gatekeeper and apply its guidelines to
ensure a focus on expanding access to justice and to prevent abuse.
o Approved entities would be prohibited from accessing funding for legal
service/legal aid organizations from state or federal governmental entities or
from the Texas Access to Justice Foundation.
o An annual process of re-application and re-certification should be required for
approved entities to continue providing legal services.
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• The Supreme Court or JBCC should adopt a framework for evaluating whether approved
entities adequately increase low-income Texans’ access to free or affordable legal
services. A survey of Working Group members demonstrated roughly equal support for
two approaches:
o Adopt a fixed threshold of clients, as a percentage of all clients served, who
qualify as a “low-income Texan”; or
o Evaluate each entity application, exercising discretion on a case-by-case basis, to
determine whether the proposal (including the proposed legal services,
description of expected clients, proposed funding model and fee structure, and
proposed safeguards to satisfy rules for participation), present a sufficient
likelihood of addressing expanding access to justice for low-income Texans to
justify the entity’s participation in the pilot program.
• An annual process of re-application and re-certification should be required for approved
entities to continue providing legal services.
PROPOSED EXEMPTION TO RULE 5.04
The Supreme Court’s charge to the Commission subsumes several criteria. A responsive
proposal must (a) enable non-attorneys to have economic interests in entities that provide legal
services to low-income Texans, (b) while preserving professional independence. The proposal
should (c) address the civil justice gap and expand access to justice for low-income Texans. And
finally, it should (d) incorporate recommendations about (i) whether the modifications should
be studied through a pilot program or regulatory sandbox, and (ii) whether the modifications
should focus on services for which there is a particular need.
Rule 5.04(d) currently prohibits a lawyer
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from practicing “in the form of a professional
corporation or association authorized to practice law for a profit” when ownership interests are
held by a non-lawyer. Rule 5.04(a) generally prohibits lawyers from sharing legal fees with non-
lawyers, and Rule 5.04(b) prohibits lawyer partnerships with non-lawyers to engage in the
practice of law. The recommendation therefore must propose a method to establish an
appropriately limited exception to Rule 5.04(a), (b), (d)(1), and (d)(2). The context of the
Supreme Court’s charge—both the concern for expanding access to justice, and the admonition
to protect attorney independence—invites a proposal for a limited exception that is tailored to
expand access to justice while preserving protection for attorneys to fulfill their duties to clients
without undue pressure from non-attorneys co-owners or managers.
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In this respect, the
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This report generally uses the term “attorney” for consistency. However, Rule 5.04 refers to lawyers and when
referring to Rule 5.04, this report uses the term “lawyer” to track the language of Rule 5.04.
85
This is as distinguished from the possibility of abolishing Rule 5.04(d) entirely, which would have major
implications for law practice that go well beyond addressing access-to-justice concerns, as well as exposing all
areas of practice to concerns for preserving attorney independence.
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response to the Supreme Court’s invitation to consider whether modifications should focus on
certain services for which there is a particular need is yes. While the Working Group does not
propose to define in advance those services that may be provided under the exception to Rule
5.04, it does propose a process to authorize only those services that demonstrably serve or
propose to serve a particularly identified need of low-income Texans.
To maximize the potential for helpful innovation while also ensuring that the traditional
Rule 5.04(d) prohibition is relaxed only to enable opportunities to expand access to justice for
low-income Texans,
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the Working Group recommends allowing certified and licensed entities
to provide legal services for a profit,
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within criteria specified either by the text of the rule, or
by guidance promulgated by the JBCC, or both. The criteria for the circumstances in which the
exception would apply can be articulated both positively (e.g. requiring that the entity actually
provide civil legal services in areas of need to low-income Texans) and negatively (e.g. excluding
specific practices or particular legal services as may be advisable). Importantly, it is the Working
Group’s intention for and expectation of the JBCC that the approval criteria will be used to
ensure both that the approved entities actually provide civil legal services to low-income
Texans and that they are operated so as to minimize concern related to interference with
attorney independence.
This proposal in satisfaction of the Supreme Court’s charge could take the form of a pilot
program designed to study the effect of such changes on the availability of civil legal services
needed by low-income Texans pending a future decision whether to formally amend
Rule 5.04.
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The Working Group proposes an order by the Supreme Court containing the
following language (or language to the same effect):
In order to expand the availability of civil legal services to low-income Texans, the
Judicial Branch Certification Commission shall establish qualifications for the
certification of professional corporations, associations, or other entities to provide a
specified scope of approved legal services. Certified entities then may be issued a
license to practice law within the approved scope, and thereby may become a “member
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The Utah Supreme Court’s order establishing its Innovation Office states: “The overarching goal of this reform is
to improve access to justice. With this goal firmly in mind, the Innovation Office will be guided by a single
regulatory objective: To ensure consumers have access to a well-developed, high-quality, innovative, affordable,
and competitive market for legal services.” Utah Standing Order No. 15, supra, note 46, at 13. Notably, while the
Utah order identifies access to justice as the “overarching goal,” the Utah order apparently does not prioritize
access to justice for the low-income community in the same way that the charge from the Supreme Court
apparently does. See also id. at 2 (“For years, the Utah Supreme Court has made combating the access-to-justice
crisis confronting Utahns of all socioeconomic levels a top priority.” (emphasis supplied)).
87
The Utah regulatory scheme expressly regulates entities and not individuals. See Utah Standing Order No. 15,
supra, note 46, at 8.
88
See Utah Standing Order No. 15, supra, note 46, at 6 & nn. 13-15; Tex. Const. art. V, § 31; Tex. Gov’t Code
§§ 82.021 & 82.022(a); cf. Ashford v. Goodwin, 131 S.W. 535, 538 (Tex. 1910).
54
of the bar” for purposes of all statutes and rules regulating unauthorized practice of law.
Paragraphs (a), (b), (d)(1), and (d)(2) of Rule 5.04 of the Texas Disciplinary Rules of
Professional Conduct shall not apply to a licensed professional corporation, association,
or other entity providing legal services within the scope approved and certified by the
Commission. Entities certified and licensed to provide legal services pursuant to this
exception must provide legal services to low-income Texans and must satisfy any other
conditions imposed by the Commission. Legal services provided by the licensee shall be
limited to those proposed by the entity and specifically approved by the Commission,
subject to any regulations and other limitations imposed by the Commission. Annual
renewal of licensure must be obtained to continue providing legal services under this
exception.
This proposed modification would create two tiers of criteria for, or limitations on, the entities
certified and licensed to provide legal services under the exception. The first tier is built into the
top-line parameters establishing the pilot program (or ultimately in any future revision to the
Rules), such as the example given above. The second tier of criteria and limitations would be
established through the rules and conditions applied by the JBCC to permit entities to obtain
and maintain licensure, and these rules should be susceptible to modification as needed over
time and based on experience, under the ultimate supervision of the Supreme Court.
Both in the text establishing an exception to Rule 5.04 and in guidelines promulgated by the
JBCC, it should be made clear that the exception exists for the primary purpose of enabling
expanded access to justice by ensuring that legal services are available to low-income Texans
who otherwise would be forced to represent themselves or otherwise be deprived of assistance
with civil legal matters. This essential criterion should be applied at the initial stage of
approving an entity’s proposed scope of services and then on an ongoing basis at the
subsequent times for renewing approval, with the benefit of any data the entity would be
required to report.
This rule proposal is included in Appendix A to this report.
REGULATORY STRUCTURE UNDER JBCC
The JBCC appears to be well situated to be delegated the responsibility of overseeing entities
offering legal services under a provisional exception to Rule 5.04, whether characterized as a
“pilot program” or “regulatory sandbox.”
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Under either concept or choice of terminology, the
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The Court asked the Commission to consider whether the rule modifications should be enacted as a pilot
program or in a “regulatory sandbox” structure. “A regulatory sandbox is a controlled environment where startups
and other innovative businesses can test products or services under regulatory supervision while being temporarily
exempt from specific regulations that would otherwise restrict or prohibit operations.” Rod Bordelon, Reducing
Regulatory Uncertainty: Sandboxes and Letters of Interpretation (Nov. 2022), available at
55
Court could impose a specific sunset deadline, as the Utah Supreme Court has done.
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Also, the
Court would retain to itself the effective power to wind down the program at any time in the
future by withdrawing approval for new or renewed certifications by the JBCC, and by
withholding or withdrawing licenses.
The JBCC’s registration process to obtain certification leading to licensure (or renewed
licensure) to provide legal services under the exception to Rule 5.04 should require disclosure
of information necessary to ensure that important civil legal services in an area of need actually
would be provided to low-income Texans, and to monitor the effectiveness of each approved
entity in that regard. Mandatory disclosures should require descriptions of:
• the scope of the proposed legal services;
• the intended client base, including how the entity will ensure some percentage of its
clients meet the low-income requirement;
• how the proposed legal services will increase access to civil legal services needed by
low-income Texans;
• the proposed funding model, including client fee structure;
• form client engagement agreement and notification of conclusion of engagement;
• ownership and management structure, identifying the level of participation by non-
attorneys and potential conflicts of interest between the entity’s owners and the
proposed legal services;
• specific written protections for attorney independence; and
• plan for notice and mitigation of prejudice to clients, in the event of discontinuation of
the entity, discontinued certification of the entity’s authorization to provide legal
services, or discontinuation of the exception to Rule 5.04 established through the
certification and licensure process.
https://www.texaspolicy.com/wp-content/uploads/2022/11/2022-11-RR-AfO-ReducingRegulatoryUncertainty-
RodBordelon.pdf (last accessed September 14, 2023); see also State Policy Network, Everything You Need to Know
About Regulatory Sandboxes (Oct. 12, 2021), available at spn.org/articles/what-is-a-regulatory-sandbox/ (last
accessed September 14, 2023). The Utah regulatory sandbox for legal services was created by the Utah Supreme
Court to operate for a 7-year pilot phase. Utah Standing Order No. 15, supra, note 46, at 3.
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“At the end of [the pilot phase], the Supreme Court will carefully evaluate the program as a whole, including the
Sandbox, to determine if it should continue. Indeed, unless expressly authorized by the Supreme Court, the
program will expire at the conclusion of the seven-year study period.” Utah Standing Order No. 15, supra, note 46,
at 3.
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As part of the initial and renewed certification processes, approved entities should be required
to undertake ongoing obligations, including:
• adherence to rules governing the legal profession when providing legal services,
including advertising rules, protection of confidential client information,
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avoiding
conflicts of interest, and management of client funds;
• regular reports, and agreement to JBCC monitoring to ensure that: (1) the entity
provides quality legal services to low-income Texans either pro bono or at affordable
and transparent rates; (2) the services are rendered in compliance with all attorney
ethics rules, which will also apply to the entity (including protection of attorney
independence and client confidentiality, advertising restrictions, avoidance of conflicts
of interest, and safekeeping of client funds); and (3) clients are protected from
exploitation and inferior services that cause more harm than good; prominent
disclosure of non-attorney ownership or management to the public and to clients;
• identification of compliance officers or other responsible Texas-licensed attorneys to
ensure attorney independence (see Rule 5.04(c)) and general compliance with ethical
rules, including protection of client confidences (see Rule 1.05) and non-solicitation of
potential clients;
• all legal advice provided through the entity must be rendered by licensed attorneys or
paraprofessionals, and not by artificial intelligence or algorithms;
• providing information to clients about how to report complaints to the regulating
authority,
92
regular reporting of complaints received, and requiring that clients be
contacted to provide feedback on the services received;
• collection and reporting of data about client demographics, including client income,
93
legal services provided, fees collected, and objective outcomes;
• commitment not to seek or accept funding for legal service/legal aid organizations from
state or federal governmental entities or from the Texas Access to Justice Foundation;
and
• disclosure of whether the entity carries malpractice insurance.
91
The requirement for protection of client confidences would preclude the harvesting and profiting from private
client information by licensed entities.
92
For example, see the Judicial Branch Certification Commission’s Complaint Form, available at
www.txcourts.gov/media/1454805/jbcc-complaint-form-2022.pdf (last accessed Dec. 5, 2023). See generally Texas
Judicial Branch, Judicial Branch Certification Commission, Compliance, www.txcourts.gov/jbcc/compliance (last
accessed Dec. 5, 2023) (describing JBCC’s complaint procedure).
93
For example, Maryland Court Help Centers collect demographic data from clients including income brackets,
gender, race/ethnicity, level of education, age, and ZIP code. See generally Resources for the Self-Represented in
the Maryland Courts (2022).
57
CONSIDERATION OF PARTICULAR PRACTICE AREAS
The JBCC also should provide guidance as part of the entity application process, and it should
carefully consider in its certification process, scenarios in which it may not be appropriate to
permit partnership with non-attorneys.
94
For example, it generally may not be appropriate to
permit non-attorneys to participate in contingent-fee arrangements (or the other scenarios
prohibited by Penal Code section 38.123), as these arrangements by their nature and purpose
already are accessible by low-income clients, and so approving their use by non-attorney-
owned firms seems unlikely to further expand access to justice.
95
The Working Group’s and the Non-Attorney Ownership Subcommittee’s engagement with
representatives of various practice areas have provided helpful input about whether and how
the JBCC should consider entity applications to provide legal services in particular areas of
practice.
96
Reports from stakeholders in these practice areas are included in the stakeholder
feedback in Appendix E. Considering the deadlines for reporting to the Supreme Court and the
certainty of continuing discussions on these subjects to the extent the Supreme Court continues
to consider these reforms, and the prospect that the JBCC would be responsible for
implementing any reform under the guidance of an advisory board formed for this purpose, it is
beyond the scope of what this Working Group could have hoped to accomplish to propose fully
comprehensive and definitive proposals for each affected practice area. The Working Group’s
work has surfaced the following practice-area-specific considerations, which are not intended
to reflect comprehensive statements of position as communicated by representatives of the
respective practice areas. Additional information can be found in the written input submitted
on behalf of the various practice areas included in Appendix E.
FAMILY LAW
Family law is an area in which there is great need for civil legal assistance among low-income
Texans,
97
but the adequacy of data to support authorizing legal services provided by non-
94
See generally 2 G. Hazard et al., The Law of Lawyering § 48.03 (4th ed.) (identifying risks of participation by “lay
intermediaries” as unauthorized practice of law by nonlawyer participants, lessened protection for client
confidences, impairment of lawyers’ independent professional judgment, improper solicitation of clients, and
encroachment by professionals in other fields).
95
Guidance also may be desirable concerning referral fees or other types of fee-splitting, such as are applicable to
lawyers at different lawyer-owned law firms. See Tex. Discip. R. Prof’l Cond. 1.04(f) & (g).
96
Notably, some of the feedback from representatives of various practice areas reflected general opposition to the
idea of creating an exception to Rule 5.04. Substantial effort has been put into written feedback provided in this
process, and many attorneys who were otherwise generally opposed to any proposed reform nevertheless has
constructively engaged to respond to the Supreme Court’s charge.
97
See, e.g., The Justice Gap, supra, note 1, at 35 (“About one-quarter (26%) of all low-income households have
experienced at least one problem related to family matters or personal safety. The prevalence is significantly
higher among households with children under 12 years old (44%). The most common problems across all
households in this area include experience with domestic violence (affecting 10% of all households), problems
58
attorney-owned firms in Texas has been questioned, at least so far as it applies to family law.
98
In addition to other general concerns expressed by family-law practitioners in opposition to
non-attorney ownership of firms by non-attorney, family law is an often complicated area
presenting frequent concerns about conflicts of interest, including difficult ethical issues related
to fees and misaligned incentives leading to protracted, asset-consuming litigation.
99
Clients
with the means to hire attorneys under traditional models already inadvisably try to represent
themselves and use inappropriate forms in complicated matters, prompting questions about
whether strict means-testing would be appropriate. That said, it seems evident that some areas
of family-law practice, such as name changes,
100
could be susceptible to cost-saving innovations
that should not present concerns. To the extent Rule 5.04 is reformed over their extensive
objections, the Family Law Council proposes certain regulations beyond those contemplated by
this Subcommittee,
101
including “strict criteria for determining the eligibility of low-income
collecting or paying child support (9%), and separation or divorce (9%).”); see also id. at 73 (noting, based on LSC’s
2021 Intake Census data, that 28% of all the problems receiving legal help from LSC-funded organizations are
related to family and safety).
98
Written input from the Family Law Council includes the memorandum in Appendix E from the Future of Family
Law Committee dated October 17, 2023 regarding “Non-Ownership of Family Law Practices” (hereinafter, FOFLC
Memo), including an attachment to that memorandum titled “Analysis of the Conclusions of ‘Access to Justice
Facts’ as the Basis for Creating Non-Lawyer Ownership of Law Firms” (hereinafter, FOFLC Analysis of “Access to
Justice Facts”). The FOFLC Memo takes issue with the “Texas Unmet Legal Needs Survey,” submitted to the Texas
Access to Justice Foundation in July 2015, which is a source of information supporting statistics underlying the
access-to-justice crisis in Texas. See Texas Unmet Legal Needs Survey, supra, note 63, at 1 & n.2 (“In Texas, 90% of
the civil legal needs of low-income individuals are unmet.” (citing Texas Access to Justice Foundation, Access to
Justice Facts, supra, note 8). The FOFLC Analysis of “Access to Justice Facts” interprets the Texas Unmet Legal
Needs Survey to show that “at most, approximately 1.5% of low-income individuals have unmet civil legal needs in
the area of family law”—a conclusion that they also “reject out of hand…as being far too low.” FOFLC Analysis of
“Access to Justice Facts” at 1-2. The FOFLC Memo also critiques a “lack of input from trial judges whose courts
have family law jurisdiction.” FOFLC Memo at 2. While there is no known documentation of Texas judges with
family-law jurisdiction disagreeing about the substantial unmet civil legal needs of low-income Texans in the area
of family law, a survey could be conducted to collect additional information from these trial judges. But it is worth
noting now that the FOFLC Memo provides that the Family Law Council “agrees that there is a crisis in providing
affordable legal services to low-income Texans and supports the Supreme Court of Texas in its efforts to identify
effective methods to address this problem.” FOFLC Memo at 1 (emphasis supplied).
99
See Tex. Discip. R. Prof’l Cond. 1.04 cmt. 9 (“Contingent and percentage fees in family law matters may tend to
promote divorce and may be inconsistent with a lawyer’s obligation to encourage reconciliation. Such fee
arrangements also may tend to create a conflict of interest between lawyer and client regarding the appraisal of
assets obtained for client. See also id. R. 1.08(h). In certain family law matters, such as child custody and adoption,
no res is created to fund a fee. Because of the human relationships involved and the unique character of the
proceedings, contingent fee arrangements in domestic relations cases are rarely justified.”); see also FOFLC Memo
at 12.
100
LegalZoom offers legal name changes starting at $139 plus court filing fees. See LegalZoom, Name Change,
https://www.legalzoom.com/personal/marriage-and-divorce/name-change-overview.html (last accessed Dec. 5,
2023). However, the Family Law Council has asserted that “there is an insufficient market for adult name changes,
particularly among low-income individuals, to justify the creation of NLO’s.” FOFLC Memo at 6.
101
Subject to its general opposition to the reform, the Family Law Council proposes that non-attorney owners of
licensed firms be required to satisfy character and fitness requirements similar to those required of Texas-licensed
attorneys. FOFLC Memo at 9. They propose that “non-attorney stakeholders” must “undergo continuous legal
59
Texans” which “could include verifying financial records, employment status, and other
relevant factors” and which also may require further review over the life of an engagement.
102
IMMIGRATION LAW
103
Immigration law is another often-complicated area of practice
104
with a substantial unmet need
for services by low-income Texans. It is a practice area that intersects with many federal
regulations, including regulation of the practice of immigration law.
105
And the consequences of
bad advice can be devastating.
As noted in the July 2023 Report from immigration practitioners:
The consequences of ineffective assistance in an immigration case can be catastrophic;
an individual may face loss of employment, family separation, or even removal from the
United States with bars to reentry. If someone seeks a green card and has a child
approaching 21 years of age, a delayed filing could cause the child to “age out” (lose
eligibility to become a permanent resident). Many of our members have had clients with
very extensive problems based on an error in a previous case, often something one
might assume would be a minor issue. In some cases, the error cannot be corrected.
training and professional development” that “should match or exceed the requirements of the legal community for
CLE and include trauma training.” Id. at 10. They propose regular “performance audits,” assessing the quality of
licensed entities’ legal representation and “comparing it to traditional legal standards to ensure it meets a certain
standard.” Id. at 9-10. They also propose “a peer review system where seasoned attorneys periodically evaluate,
and review cases handled by these entities.” Id. at 10-11.
102
FOFLC Memo at 9. Subject to its general opposition to the reform, the Family Law Council also proposes that
100% of non-attorney-owned entities offering family-law services meet the standard set for “low-income Texans,”
and that fees charged by approved entities must be “less than comparable licensed lawyers” and that at least 25%
of their services must be provided at no cost. Id. at 8.
103
Written input from representatives of the Immigration Section of the State Bar includes a memorandum dated
July 25, 2023 (hereinafter July 2023 Report) and PowerPoint slides presented to the Scope of Practice
Subcommittee on August 25, 2023. These documents are included in the stakeholder feedback in Appendix E.
104
See generally July 2023 Report at 5-8.
105
The July 2023 Report noted that “[r]epresentation of noncitizens in immigration matters is exclusively before
federal agencies and courts, not state bodies. Federal statutes and regulations create a comprehensive
administrative scheme to regulate who may prepare and file immigration cases and provide immigration legal
advice.” July 2023 Report at 1. Acknowledging the federal courts’ authority and competence to regulate practice
before them, we nevertheless perceive (or at least are not persuaded that there could not be) a potential
opportunity for innovative methods of delivering immigration-related legal counseling and other forms of legal
services that could be of great assistance to low-income Texans. Even to the extent immigration advice and the
preparation and filing of immigration applications, as contemplated by 8 C.F.R. § 1.2, is limited only to those
authorized by 8 C.F.R. § 292.1 and who generally may be only lawyers and certain accredited nonprofit
organizations, it could be possible that such services could be delivered at lower costs by accredited attorneys
working under the auspices of a non-lawyer-owned entity as envisioned by these proposed rule modifications.
60
Until a noncitizen gains status as a U.S. citizen, immigration impacts every aspect of
their life. A single misstep along the way could cost them everything.
106
The July 2023 Report identifies a consumer-protection concern with respect to “notarios
publicos,”
107
which should be considered by the JBCC with respect to any future entity
application implicating that nomenclature.
The Subcommittee encouraged the Immigration Section of the State Bar to research the types
of immigration-law services being offered by ABS in Arizona and Utah. It does appear that many
of those services are business- and employment-related, and therefore they may not be the
kind of service needed by low-income Texans. Still, there may be other legal services needed by
low-income clients that do not implicate the noted concerns, such as visa applications.
TAX LAW
Tax is an area where non-attorneys already have a wide scope of permitted practice. Therefore,
the primary issue to be managed by the JBCC may be consumer protection to avoid abuse of
the opportunity to provide deceptive or exploitive services that do not genuinely help low-
income Texans.
Problematic areas in which the JBCC would want to pay special attention to proposals to
provide services include:
• unlicensed tax return preparation services that are exploitive (e.g. charging excessive
fees, often in connection with advancing the taxpayer the claimed refund amount),
ineffective, or fraudulent;
• offer-in-compromise mills that offer to “settle your tax debts for pennies on the dollar”–
some bad actors in this area have been known to charge high fees and prepare an offer,
despite knowing very early in the process that the IRS will not accept it, or they charge a
high fee and don’t even submit anything to the IRS;
• “Employee Retention Credit” claims; and
• advice on tax reduction, including promotion of abusive “tax shelters.”
The constructive comments received from tax practitioners propose, and the Working Group
would encourage the JBCC to consider, that non-attorney-owned entities proposing to provide
tax-related legal services should be limited to the categories of qualified and regulated
individuals who may communicate with the IRS on behalf of a taxpayer: CPAs and EAs duly
authorized by the IRS under the requirements of Circular 230. The tax practitioners observe
106
July 2023 Report at 2; see also id. at 12-18; cf. Padilla v. Kentucky, 559 U.S. 356 (2010) (involving unanticipated
immigration consequences of plea agreements).
107
See July 2023 Report at 32-34.
61
that these individuals are subject to specialized training, education, and certification and
therefore do not pose the same risk as unregulated tax return preparers discussed above.
The tax practitioners also note the complexity of tax practice, and the heightened risks to
clients of incompetent representation.
PROTECTION FOR ATTORNEY INDEPENDENCE
There have been a number of proposals for protecting attorney independence in the context of
jurisdictions that already permit non-attorney ownership of law firms, or other scenarios such
as proposals to permit multidisciplinary practice.
108
The Working Group proposes that the JBCC
implement some or all of these protections utilized in other jurisdictions.
One type of safeguard would involve regulatory requirements designed to ensure protection of
professional independence for attorneys working in firms with non-attorney owners or
managers. Elements of written assurances could include:
• commitment to no direct or indirect interference with the independence of an
attorney’s professional judgment by the entity, any member of the entity, or any person
or entity controlled by the entity;
• procedures to protect an attorney’s professional obligations to maintain proper
standards of work, make decisions in the best interest of clients; maintain client
confidentiality, and segregate client funds;
• requirement that members of the entity delivering or assisting in the delivery of legal
services will abide by the rules of professional conduct;
• acknowledgement of the unique role of the attorney in society as an officer of the legal
system, a representative of clients, and a public citizen having special responsibility for
the administration of justice—including attorneys’ special obligation to render voluntary
pro bono legal service;
• process for annual review of procedures and amendment as needed to ensure
effectiveness;
• annual certification of compliance, filed with the certifying agency, along with relevant
information about each attorney who is a member of the entity; and
• agreement to permit the certifying agency to review and conduct an administrative
audit of the entity (at the entity’s expense), as each such regulatory authority deems
appropriate, to determine and assure compliance.
108
Past proposals to amend Model Rule 5.4 in the context of the ABA’s study of interdisciplinary practice can be
found in A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2013 (Art
Garwin, ed.) (hereinafter, “Garwin”).
62
These protections can be documented in writing in attorney employment agreements (or
otherwise be provided to the attorneys),
109
in company policies,
110
and in applications for
certification to offer legal services with non-attorney ownership or management.
111
The written
undertaking could be required to be signed by the CEO (or equivalent officer) or board of
directors (or similar body) and filed with a relevant regulating agency.
Another complementary method of ensuring attorney independence in the context of non-
attorney ownership or management can be found in the developing field of Proactive
Management-Based Regulation or “PMBR.”
112
PMBR entails an entity’s self-assessment to
determine if it has effective systems in place. If an entity reports that it is falling short in an
area, a regulator can work with it to achieve compliance. This is called “education towards
compliance.” Through self-assessment, firms learn about what is required of them and receive
support to improve operations. A self-assessment tool could be tailored to work in tandem with
any rule-based changes that are promulgated. Initially developed in Australia in response to the
development of non-attorney-owned law firms, study and development of PMBR has continued
in various jurisdictions, and it has been implemented in Colorado
113
and Illinois.
114
Any
implementation of PMBR should include consideration of evidentiary privileges which may be
desirable to promote an effective self-assessment process.
SAFEGUARDS TO ENSURE PRIORITIZATION OF SERVICES TO LOW-INCOME CLIENTS
As reinforcement of this reform’s specific purpose to expand access for low-income Texans (as
distinguished from other jurisdictions that have relaxed or repealed Rule 5.04 without such a
limitation), guidelines should be applied to ensure a focus on expanding access to justice for
low-income Texans and to prevent abuse.
109
See, e.g., ABA Special Committee on Prepaid Legal Services Feb. 1983 proposed amendment to draft Rule 5.4
(available in Garwin, supra, note 109, at 611).
110
See, e.g., ABA Commission on Multidisciplinary Practice Aug. 1999 recommendation (available in Garwin, supra,
note 109, at 618-19); see also comments 7-10 and related proposed Rule 5.8(d) making entity that fails to comply
with its written undertaking subject to withdrawal of its permission to deliver legal services or to other appropriate
remedial measures).
111
See, e.g., Arizona ABS Code E.2.
112
See generally American Bar Ass’n, SCPR CPR PMBR Web Resource, available at
https://www.americanbar.org/groups/professional_responsibility/scpd_cpr_pmbr_web_resource/ (last accessed
Dec. 5, 2023); Susan Saab Fortney, Promoting Public Protection through an “Attorney Integrity” System: Lessons
from the Australian Experience with Proactive Regulation of Lawyers, 23 The Prof’l Lawyer 16 (2015), available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2906525 (last accessed Dec. 5, 2023).
113
See Colorado Supreme Court, Office of Attorney Regulation Counsel, Lawyer Self-Assessment Program,
available at https://coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp (last accessed
Dec. 5, 2023).
114
Ill. S. Ct. R. 756(e)(2) (requiring self-assessment for attorneys who disclose failure to obtain malpractice
insurance).
63
As indicated above, for purposes of this proposal, “low-income Texans” is defined with
reference to 200% of the federal poverty guidelines as determined by the United States
Department of Health and Human Services.
The Working Group did not reach any consensus about how applicants should be evaluated to
determine whether their proposals sufficiently expand access to justice to justify allowing them
to operate under the exception to Rule 5.04. Two approaches garnered roughly equal support
from members of the Working Group.
One option would establish a minimum amount of service to low-income Texans, likely
measured as a percentage of all clients served. To facilitate evaluation in this regard, approved
entities should collect and report data supporting the quantification of qualifying low-income
clients. But to realize the possibility that innovative services may be offered in Texas benefiting
low-income Texans, and to facilitate sustainable business models that make possible the
availability of such low- or no-cost services, approved entities need not necessarily be
precluded from offering their services at higher prices to clients willing and able to pay for
them. Members of the Subcommittee favoring this option proposed minimum thresholds
ranging from 20% to 80% of all clients served being low-income Texans. When discussed by the
full Working Group, two members voted in favor of requiring that 100% of clients be low-
income Texans. Others expressed the concern that restricting too strictly the services that can
be offered to fee-paying clients will discourage investment to produce innovative services by
restricting the innovators’ opportunities to achieve a return on their investments.
Another option would vest the JBBC with discretion to exercise its approval authority as a
gatekeeping function to exclude proposals that do not appear to be genuine attempts to
provide a needed service to an underserved population of low-income Texans. Consistent with
the concept of permitting the entry of innovative services, while also preserving resources for
other legal providers working to expand access to justice, approved entities should be
prohibited from seeking or accepting grants from state or federal entities or the Texas Access to
Justice Foundation. Approved entities should be encouraged to prioritize and maximize the
provision of services to low-income Texans.
As an element of the process of initially approving and then reapproving entities to provide
legal services, the JBBC should be mindful of potential exploitation of low-income clients, and
should disqualify providers judged to do more harm than good with respect to the quality of
service being provided to low-income clients.
64
OTHER POTENTIAL RULE REVISIONS
The Working Group’s rule proposals should not be analyzed in a vacuum. For example, if the
proposals are adopted, they will necessitate corresponding revisions to Texas privilege rules
(e.g., to protect communications between licensed paraprofessionals and their clients) and may
necessitate revisions to other Texas procedural rules that are not phrased broadly enough to
cover licensed paraprofessionals (e.g., because they address “lawyers” providing legal services).