Access to justice remains a pervasive problem in the Texas legal system. In this episode, Todd Smith and Jody Sanders welcome Texas Supreme Court Justice Brett Busby and Kennon Wooten from Austin’s Scott Douglass & McConnico to discuss the latest developments on this front. The conversation focuses on new Supreme Court rules for licensing paraprofessionals and court access assistants to help close the justice gap. Justice Busby shares insights on national trends and the Supreme Court’s efforts to implement innovative legal solutions. Kennon provides a behind-the-scenes look at the process and the collaborative efforts required to bring these groundbreaking proposals to life. Tune in to hear about the scope of this initiative and how it will serve those who cannot afford traditional legal services.
A New Approach to Narrowing the Texas Civil Justice Chasm | Justice Brett Busby and Kennon Wooten
Welcome back to the show. We have two guests, one a previous guest of the show, Justice Brett Busby from the Supreme Court of Texas, and Kennon Wooten from here in Austin, who practices with Scott Douglass & McConnico. Welcome to the show.
Thank you. It’s good to be here.
Thank you, Todd and Jody. It’s good to be with you all again.
In anticipation of today’s episode, Judge, I went back and looked to see when it was that you were on the show. It was way back in July of 2020. Before we started recording, we were both expressing a little surprise at how much time had passed because it didn’t seem like that long ago. We’re certainly glad to have you back. Our regular audience will be familiar with you.
To remind folks who you are. You’re a sitting judge on the Supreme Court of Texas. You were a judge on one of the Houston Courts of Appeals for several years before that. Before that, in private practice. One of our favorite kinds of appellate judges is one who was an appellate lawyer before they became an appellate judge. Is there anything about your background that you care to share above and beyond what I hit upon before we get going?
The only other thing I’d mention is that regarding our topic relating to access to justice, that was something I spent a lot of time in private practice handling pro bono cases. When I became a judge, I wasn’t able to do that anymore. I looked for other ways to participate and I got involved with the Access to Justice Commission, which we’ll talk about, and helping out by chairing one of their committees on rules and legislation, trying to make changes to make it easier for folks who cannot afford legal representation to navigate our court system.
Also, serving when I was practicing, and on the Court of Appeals in Houston with Houston volunteer lawyers and some of the other groups there that were trying to have an impact on this problem. It was a real treat for me when I came to the Supreme Court and had a chance to become the deputy liaison for Access to Justice under Justice Guzman. When she retired, I became the liaison following in the footsteps of Chief Justice Hecht, who has long been committed to this issue. It’s a privilege for me to have a chance to work on it.
That is a pretty good clue as to what we’re going to focus on here. I’m glad you had the chance to say that. I should mention before we move on to Kennon, we’ve had the privilege of having six of the nine Supreme Court justices on the show but you have the esteemed honor of being our first two-time Supreme Court Justice guest. We’re very grateful for you and your willingness to come back, Judge.
I’m delighted to be back and appreciate your interest in this issue.
Kennon, let the audience know a little bit about you. Why don’t you tell us about your background, your path to the legal profession, and a thumbnail sketch of who you are and what you do?
I grew up in Austin. I haven’t traveled far over the course of my life at least when it comes to professional pathways. I got into the law when I found out about alternative dispute resolution because I was on a path to becoming a psychologist or psychiatrist. I didn’t know which one it would be. I had a little voice inside of my head that said, “What about the fact that you love to check boxes and get things done very task-oriented?”
When I learned about ADR, it was something that sounded perfect to combine what I had been focused on with what seemed to be well-suited for me in terms of getting things done and helping people in an efficient way. That’s what took me to law school. I went to UT where I had gone for undergrad. I’m a double-dipper. That’s why I wore burnt orange today, even though nobody can see me. Anyway, that’s how I got into law. Over the course of my career, I had the privilege of working at the Supreme Court of Texas as a law clerk to former Chief Justice Wallace Jefferson.
As the rules attorney for a few years, helping the court with promulgating and amending rules. I worked at Baker Botts here in Austin and I’ve been at Scott, Douglass & McConnico here in Austin since 2011, doing general civil litigation and appellate work. I’ve kept up with rule-related matters as a volunteer. I’m so fortunate to get to work with the court on things like efforts to increase access to justice.
You undersell yourself a little bit. That experience as the Supreme Court Rules Attorney has to be invaluable for the relationships you built during your time there. You’re also on the Supreme Court advisory committee now, are you not?
That’s correct. I’m on the Supreme Court Advisory Committee, which I got involved with when I was the Rules Attorney. I had the privilege of working with Justice Busby when I was on the State Bar of Texas Court Rules Committee. That’s when we first started drafting rules together. It was great to be back in that role with him in the Access to Justice space. That is an area, just like Justice Busby, that I have a lot of passion about.
I got involved with it as a baby lawyer at Baker Botts doing pro bono work, and then saw what the court was doing and increasing access to justice, and went on to serve on the Texas Legal Services Center Board of Directors for about a decade, and then the Access to Justice Commission, and have been involved with a couple of initiatives on a volunteer basis for trying to increase access to justice, which we desperately need to do in our state.
I think you’ve also undersold that you’re wearing burnt orange because it’s the first Texas OU weekend with both of them in the SEC. That’s when we’re recording this, the Friday before.
I have so many reasons to wear burnt orange and you cannot see my shoes if there’s a little burnt orange there too.
I cannot comment on that. Anyway, moving on. We’ve heard the Texas Access to Justice Commission mentioned already more than a couple of times. Justice Busby, I know you mentioned your involvement in being a liaison. Is that part of your liaison role to interface directly with the Texas Access to Justice Commission?
Yes, and also with the foundation, which helps administer the money that the legislature gives for Access to Justice and also the IALTA revenues to put that money to good use trying to help Texans who cannot afford basic civil legal services. The commission is more on the policy side. What kinds of changes can we make? What kinds of partnerships can we create to make a difference? The foundation is on the money side.
Everyone should be pretty clued in by now that we asked you both to come on the show and talk about access to justice generally, but more specifically, we thought it would be a great opportunity to educate our audience and anyone who happens to come across our show about not only the commissions but also the Supreme Court’s recent efforts to address access to justice. It’s been in the news pretty regularly now.
The preliminary rules allow licensed paraprofessionals and certain other folks the ability to provide limited legal services without it constituting the unauthorized practice of law, which is one big issue that I’m sure had to be navigated around. We’ve touched upon the bigger problem here, but can we have a 30,000-foot view and narrow down the scope of the access to justice problem as you might describe it? Justice Busby, I know you’ve talked about this a lot. Why don’t I kick this to you and let you tell us more about it?
It’s stark and it’s getting worse. The latest statistics show that over 90% of the civil legal needs of low-income Texans are not being met, which is pretty astonishing and that’s all in. We’ve tried and it’s very needed and appreciated that the profession has tried to deal with this issue by encouraging lawyers to do pro bono work. That’s certainly helpful and does make a difference to people. We’ve also done it with funding by getting funding from Congress for the legal services corporation, by getting funding directly from the state legislature, and by getting private donations to try to help some of our not only legal services corporation entities but private charities as well.
Various bar groups around the state are putting a lot of time and effort into helping people. That’s what’s meeting 10% of the need. That gives you a sense of the scale of this problem. We have 5.2 million Texans who qualify for civil legal aid, but there’s only one legal aid lawyer for every 7,000 of those Texans who qualify. Texas currently ranks 46th in ensuring access to justice for all. As a statewide elected official who’s elected not only to decide cases but to administer the justice system, that’s unacceptable from my standpoint.
The court feels and has felt very strongly about this issue for decades. What we’ve come to see is that while we need to keep doing pro bono, we need to keep looking for funding, that’s not going to be enough. The problem is so huge. We have to look for innovative structural changes of a lot of different kinds to be able to close this justice gap. That’s where we got into this, starting to look around for what other states are doing, what other countries are doing, looking at national trends, and several national groups.
The American Bar Association has encouraged states to look at these issues and come up with additional solutions. The Conference of Chief Justices of all the states, which Chief Justice Hecht was the president of a couple of years ago during the pandemic and led so ably. They have encouraged states to look at innovations in this regard as well. One of the ones that’s been tried in several states now is licensing paraprofessionals to perform limited legal services. It’s something that’s not new to the legal profession worldwide.
They’ve been doing it for decades in England and Canada, and for a few years now in several states. Utah and Arizona were the first movers on this. Depending on how you count, there are maybe 8 or 10 states that are already doing this, and another 10 or 15 that are looking at it. It’s something that we have a track record with. We’ll get into that in a little bit but that was one of the things that the court wrote to the Access to Justice Commission to say, “Could you please study this? If we want to do a legal paraprofessional program, what would be the best way to do that?”
That was our charge to the Access to Justice Commission to take a look at this. That’s where Kennon and her colleagues came in. She can tell you a little more about how the Access to Justice Commission kicked off this process. To give the listeners a little sense of what we’re talking about, you can think of a physician assistant or a nurse practitioner in the medical field. You don’t need a brain surgeon when you have a cold. You don’t need to wait a long time to get an appointment with them.
You don’t need to pay them a whole bunch of money to get a simple prescription for something easy to address. There are a lot of very routine legal problems that these folks who cannot afford lawyers face. That’s what the premise is. Is there a way we can license people who have the right experience, can pass a test, and demonstrate their competence to handle these simple kinds of legal issues that come up in the areas where we see the most low-income Texans trying to represent themselves?
You mentioned the Supreme Court’s letter. Where we are now is the culmination of about a two-year process in my estimation when the Supreme Court did send a letter and created the charge as it were to the Access to Justice Commission to study this issue and make recommendations. There was a lot of buildup even leading to that point, but you have now this two-year period passed, and the commission has done a whole lot of work. I’m going to kick it over to Kennon now to ask about the working group and take us through the process that the working group went through in studying this issue.
If it’s okay with you, Todd, I’ll take it a little back in time to the formation of the working group and how the commission went about doing that. It might be helpful for the people who are tuning in.
100%.
The commission is currently led by Harriet Miers as the chair. As she is with everything she does, she was very thoughtful about how to go about carrying out the request of the court and looking at these issues as laid out in the October 24, 2022 letter from Justice Busby. The commission itself had input on who might serve on this working group. Pretty early on, three co-chairs of the working group were identified. The co-chairs are Lisa Hobbs, former Justice Michael Massengale, and myself.
We worked closely with Justice Busby and Chair Harriet Miers to think about who we might need on the working group, considering how diverse and big the state of Texas is, and also considering what we thought the areas of expertise would likely be, though we weren’t sure at the very beginning what they would end up being because we hadn’t yet looked at the data that was available to assess the focus areas in terms of subject matter. We did get together with the commission at a meeting and talk about potential members of the working group.
We put our heads together. We reached out to individuals in various parts of the state and with various roles that we thought would be useful. By way of example, for people who are in academia, we thought that would be good. Justice Eva Guzman, who was mentioned earlier, who’s passionate about access to justice and has in-depth experience and knowledge was included. We also thought we’d need family law practitioners because that was an obvious area of high need in terms of increased access to justice.
Pretty early on, we identified probate in estate law as another area of likely need. We reached out to people with that type of work in their background. Ultimately, with a lot of input and thought and a fair amount of time, we came up with a working group that was 27 in number. If people are interested in knowing the individuals and where they’re from, they can look at the working group report. We can certainly get a link to you for the full report so you can see them.
That’d be great.
The first working group was a brainstorming session. All of the working group meetings are posted online so people can watch the recordings and see the materials that they want. More than anything else, we knew we needed to get the expertise and input from the working group members and figure out where we were going to go with this project. We formed three subcommittees not long after the working group was formed and after its first meeting. The three co-chairs of the working group chaired those subcommittees.
I chaired the scope of practice subcommittee. Lisa Hobbs chaired the one focused on licensing and regulation. Justice Massengale focused on chairing the one that we’re not here to talk about, but that’s the non-lawyer ownership of legal entities. Those subcommittees had members who were on the working group and members who were not on the working group because once we identified the highest areas of need in the subject matter that we’d focus on, we pulled in additional people with those areas of expertise. By way of example, my subcommittee, the scope of practice subcommittee itself had 26 members.
Not all from the working group, but some from the working group. I won’t bore you with meetings because I don’t think that the audience wants to hear a lot about meetings, but there were a lot of meetings, working group meetings, subcommittee meetings, subgroups of subcommittee meetings, and lots and lots of meetings and discussions. Always bringing back to the working group, however, the recommendations and input from the lower level groups. Ultimately, that culminated in a presentation to the Texas Access to Justice Commission in December of 2023 with recommendations that gave rise to the proposals that we’re here to talk about.
The fact that you had a subcommittee of 26 and a working group of 27 and managed to get this done in a year is pretty incredible.
There are many meetings, Jody.
Still, even with many meetings, that’s amazing.
I should give a shout-out that I haven’t done yet. It’s very important. We have the National Center for State Courts involved and Chair Harriet Miers got the NCSC involved early on. Jody, I have to give credit to the people from NCSC because they brought to the table a lot of input information and also they helped us tremendously with coordinating these meetings, bringing together the information from the meetings, with preparing minutes for the meetings so that we wouldn’t have to spend time doing things like that. It was truly invaluable and I’m convinced that we wouldn’t have been able to do what we did but for the involvement of NCSC.
Has NCSC done similar things with other working groups from other states? Is that one of their initiatives to try and help with this issue and help state bars and regulating authorities get over the initial hump as it were?
Justice Busby, you may know the answer to that question more than I do. I know that the women we worked with at NCSC had in-depth knowledge of what was happening in other states, but I don’t know what their roles were there.
They have helped some on these issues. There are also a number of other organizations that are interested in them. The Rody Center at Stanford, the Institute for the Advancement of the American Legal System at the University of Denver. Some groups are studying these issues systemically and are able to offer states resources to do exactly what Kennon described, and we’re so grateful for the National Center for State Courts Assistance here. Their particular agenda depends on what the chief justices think they should be focusing on at any one time.
For example, now they’re also undertaking a systemic effort to look at this problem from a different angle, which is to increase the number of lawyers that are actual licensed attorneys who are going to be practicing in underserved practice areas in cities, also who are got to be going out to our legal desert areas where we don’t have a lot of lawyers in our rural and suburban areas. How do we get that pipeline going, which is another way to try to address the justice gap? The national center is very active in this area, and it’s a function of the chief justices who lead it saying this is an important issue that we need to focus on.
I know we’re not here to talk about everything that’s being done to try to increase access to justice, but if it’s okay, I want to chime in quickly to say that this is one initiative. The Texas Access to Justice Commission is currently engaged in a strategic planning effort that Justice Busby, I’m sure could tell you more about than I can, but I do know by way of example. They’re looking at things like increasing lawyers in rural legal deserts. If you talk to some people in those parts of the state, they’ll tell you, I am the only lawyer in my county and the surrounding counties.
When we talk about like, why move to a rural area? If you want a full book of business, that’s what you need in your area. Anyway, I digress, but I wanted everybody to know that this is a very important initiative when we talk about paraprofessionals, but there are a lot of other things that are being contemplated and many things that have been tried with time to increase access to justice.
I can make a joke about there needing to be two lawyers in that rural jurisdiction, but we’ve all heard that one. That’s outstanding. I’m sure that the NCSE was a great resource because they’re looking at this from a national perspective and have been involved with other jurisdictions in their efforts to implement similar solutions. The Access to Justice Commission I guess, met and adopted the recommendations. In response to the charge, kicked it back to the Supreme Court, and made a referral back to the Supreme Court. How did the process work from there? Justice Busby, this is probably your topic.
We received the report from the working group in the commission. As Kennon mentioned, it was approved unanimously by the commission on this issue of paraprofessionals. We started a period of internal study with our current rules attorney, Jackie Daumerie, who also spent a tremendous amount of time on this, and I want to thank her, with all the members of the court who provided important input and asked great questions. We started receiving some comments and welcomed comments right away from folks who wanted to comment on the working group report, and anybody interested in providing comments to the court as we were considering what to do with the report.
We did get a number of those comments and went through and made a few adjustments to the rules that were proposed. For example, one of the things that we did, there was some discussion in the working group about which body would oversee the licensing and the admission of the paraprofessionals, be sure they’re qualified and be sure that they pass an exam, and then handle the licensing and any ethics issues, and things like that. There was some discussion about whether that should be the state bar or whether they would want to do that, whether they would have the capacity to do that.
Also, we talked about an entity called the Judicial Branch Certification Commission, which currently handles licensing and other professionals that deal with courts, like court reporters, for example. We had a conversation with the State Bar about that. Kennon was also wearing a different hat at that point in her role as chair of the State Bar Board of Directors, and she was very careful to keep those roles separate but was very helpful in being sure that we were able to talk to the right folks at the state bar to work through this and see if the bar was interested in undertaking this task of licensing, ethics, and all of that.
The bar said that they would be. That was one change that we made in the preliminary rules. The Board of Law examiners, which handles the bar exam, which I also happen to be the liaison for will be handling the examination and the qualification pieces. The state bar will be handling the licensure logistics and keeping track of continuing legal education and the ethics piece and discipline and things like that. Ultimately, we finalized the rules into a preliminary form with those revisions. That was the biggest one.
There were some others as well and issued those for public comment at the beginning of August. Those are open for comment until November 1st. We’re still taking comments and welcome people to write in with comments. We’ve had several already that have been very helpful, including from the state bar board of directors. I was out recently in Lubbock at their meeting. Their administration committee goes through and looks at it from a logistical point of view and an efficiency and process point of view, and are there changes that might be needed to be made to the rules to be sure that it would function effectively and that the state bar could do everything that they were being asked to do in the proper and efficient way.
We got some great and very thoughtful comments from the state bar board. We have gotten comments from all across the state, different lawyers in different practices, and people from other states where this has been done, who we also talked to during the working group process, and from different sections of the bar. Those have all been very helpful. That’s where we are in the process right now. We’re in the process of taking in comments. After we receive all those comments and have a chance to have a chance to think through them, we’ll eventually finalize the rules.
We’re also having some discussions with the legislature to be sure that they’re up to date on what we’re doing, answering their questions, and welcoming their input. That’s an ongoing process as well. That’s where we are. It’s been a two-year process. I’m amazed at what we’ve been able to accomplish in two years. That’s quite a short time for this undertaking but it’s a tribute to Kennon, Lisa, and Justice Massingale, who were the working group co-chairs. They did such a great job of reaching out to people, getting their input, and moving the work along.
Now I have to chime in and say that Justice Busby dedicated so much time to this project too. He was at many of the meetings, providing input and asking thought-provoking questions at every step. I was so impressed by the court’s involvement with the process. This was not a situation in which they just delegated, walked away, and then revisited. It was very engaging and I think everybody was upping their game. When you have Justice Busby in the room like, “We’re here. The court is here. The court is engaged. Let’s all do this.” You talk about all the things that help people get work done and so many variables can motivate us, but I think that Justice Busby’s presence and involvement were a motivating factor in making meaningful efficient progress.
One thing that strikes me in all this, for one, is that we’ve seen more rule revisions out of the Supreme Court in the last couple of years than I think I can remember ever in my entire career. That’s nice. It’s good because the court has been flexible and willing to not necessarily wait for a complete rewrite of the rules which happened way back when I first started practicing. The other thing that strikes me is the overall transparency in this process. Kennon, you mentioned that the working group materials were up and available for anybody to go and access.
I think that’s important because the perception of some people, mostly those who haven’t bothered to look very deeply, is that a lot of these kinds of things are done behind closed doors, and there’s some backroom deal or something like that. That’s never been my experience. To the extent, I’ve worked on things related to access to justice or state bar board business, the bar board meetings are broadcasted on YouTube. Anyone who cared to take an interest in this has had multiple touch points at which they could provide input.
As Justice Busby mentioned, the comment period closes November 1st, and we so happen to have timed this, not on purpose, to where there’s got to be about a week or so between the time this episode comes out and the time that that November 1st date comes. We would encourage anyone who tunes in to this and is either learning about this development for the first time or has been following all along and hasn’t had an opportunity to weigh in and comment. You heard what Justice Busby said. The court takes these comments very seriously.
The reason I brought up the other more recent rule revisions is we have seen tweaks made after the initial drafts have gone out after a comment period with some rules that were rolled out and made effective very quickly. Even after that, the court has made changes. This is not a situation where this is all set in stone and not subject to any revision between now. I think the intention is for the rules to go into effect around December 1 if I recall correctly. This truly is, as an observer here, a very open process.
This is a great example of how large organizations can work together to get things done. I’ll echo what’s been said already to commend the Supreme Court and the Commission, and the two of you. This was a monumental task to bring about. Congratulations on that. I look forward to learning more about it. I am quite happy that the State Bar decided to accept the invitation to be the licensing and regulatory authority because the two types of licensure, attorney and paraprofessional, are so close in function.
At least for the lawyers, I would think it would give some level of comfort to know that it’s the same entity regulating them as it is me. We’ll talk about the specifics and the rules here in a second, but they have their own ethical standards. They have their own training standards and qualifications. This is not just going and writing a check and paying a fee, and you get to do this. It’s far more rigorous than that. With that, let’s talk about maybe some lessons learned in going through this process before we get into some of the nitty gritty on the rules themselves. Kennon, what can you tell us about the lessons that were learned along the way and how all this came about?
Several things. You always learn along the way, right? There are some things we knew going into the process. That is we’d need to have people at the table who have expertise in the areas that we would be addressing. As lawyers, sometimes people assume, “You all know everything about the law because you’re a lawyer.” If you’re a lawyer, you know that that’s not true. In particular family law has some nuances so does probate in estate law and consumer debt law. We knew from the beginning that we needed to have, as part of the drafting process, people with expertise and background.
That’s something we were very intentional about from the get-go and throughout the process as well. Some things that we also learned along the way, I would say is you have to think about first the ask, which is this letter I’m holding up from October of 2022, and how that shapes the recommendations. The ask to the commission, which carried over to the working group, was to focus on providing services directly that are limited to low-income Texans. One thing we learned along the way is low income doesn’t have a set definition.
It can be defined in different ways by different entities and for different purposes. For example, the threshold for a grant may be different from the threshold for an LLC. For our scope of practice subcommittee, we tackled the meaning of low income a little bit late in my humble opinion, and I put that on me. I’m faulting nobody but myself. I didn’t appreciate how nuanced it would be. We learned that it’s important if you’re got to have a limit like that, that you start talking early when it’s not an easy answer.
We ultimately grappled with that, looked at several options, and came up with a definition. For anyone tuning in who’s not from Texas and is thinking about a project of this nature, if it’s going to be focused on low-income individuals, I’d say look at that definition early and decide what you want it to be. Another thing that we learned along the way is how important it was to identify the services that would be provided. In Texas here, for many years, the ethics rules governing lawyers have allowed for limited-scope representation.
I think a lot of lawyers have taken advantage of that. What it means is case-specific. What you have to do in that particular case is often though not always spelled out in an engagement agreement. For our purposes, we were along the way trying to define what the services would be. As Justice Busby was explaining earlier on, I think we all know from our lived experiences in the medical profession that we don’t need a specialist for routine things. We all know if we’re lawyers who have worked with paralegals that paralegals do a lot of things for us.
We do have to supervise under the current ethics rules, all the things they do. In this process and thinking about the limited scope of services, we learned that it’s helpful to think about what paralegals are already doing for lawyers, that the lawyers trust them to handle and sometimes do a light touch on because there is so much trust by way of example. Those are some of the lessons, Todd.
I guess some other ones that we grappled with along the way is the need to address the reality that cases evolve in ways that you cannot always predict. We needed to think about how the paraprofessionals and now we have Cordax assistance in the mix as well. We would be able to get out in a way that was sufficiently protective of the clients. I could go on and on about lessons learned, but those are some of the high-level ones that come to mind and Justice Busby may have others he wants to touch on as well.
I think a couple of other things I’d mention is a shout-out and thank you to the many different groups that participated through the process to help us on both of those aspects. Who are the people that these professionals are going to be able to serve and what should the definition of low income be since we’re going to limit it to that universe? There was a lot of thought and care put into that to be sure that we are focused on the mission of closing the justice gap that this is we’re trying to represent people that lawyers are not currently representing and get services for them.
Then the other piece of what are the areas of greatest need where maybe we already have forms. We already have paralegals practicing in those areas who can then go on and do some additional study and take an exam and prove their competence to handle things. A lot of these are areas, as I said, where we already have forms. There’s already a good place for them to start with representing people who cannot afford traditional legal representation.
Those areas we discovered, and we’ll talk more about this in a minute, but in getting the data from the Office of Court Administration on where you see the most self-represented people show up in Texas courts. It’s four areas. It’s landlord-tenant, consumer debt under $25,000, family law, probate, and estate work. Those are the areas where the need is, and we invited those sections of the bar to participate with us because they know those areas better than anybody.
They’re the experts. I want to extend my thanks to those sections as well because they came and sat down with us and worked in good faith to say, what are the things that somebody with the proper training who’s not a lawyer, simple kinds of things, what could they handle? That helped this process work very well.
I’ll also go back to something you mentioned earlier, Todd, and that was the transparency component. We learned from prior work and this has been something I’ve seen since serving as the rules attorney, how important transparency is. We were posting information in real time for people. Frankly, anyone who said they wanted to come to a meeting and say something got to say something. The immigration law section wasn’t originally a part of the process because we thought we were not going to be touching on immigration.
That’s a federal concept. They then helped us appreciate it by giving input that it can flow into, for example, family law matters. If you change the status of your marriage, you can affect immigration status. They helped us appreciate the interplay. They gave a presentation at one of my meetings. They gave subsequent input to the court. It was very much a transparent process with an open invitation for people to participate if they wanted to participate.
Justice Busby, you mentioned the focus is on people who are not currently represented by lawyers. I was wondering, I know that not everyone in the legal profession is a cheerleader of this solution. I can imagine there’s some perception. I think you’ve already answered the question, but I think it’s important to clarify that this was designed to serve a segment of the public that’s not currently being served.
That seems like that’s the ready answer to someone who says, “Wait a minute, family lawyers, estate planning and probate lawyers, consumer debt lawyers, isn’t this going to take away from the practices of those folks?” I don’t want to assume I know the answer, but I certainly think it would be appropriate to ask you, what would you say or what do you say to the naysayers? I know this has come up time and time again through this process, but for purposes of our discussion, what would you say in response to those concerns about business being taken away from lawyers?
There are so many clients out there who need service. There’s no shortage of business. It’s a question of what fee you want to accept for that work. There’s plenty of work to go around. It’s just that it’s not all being done currently because we’ve created a regulatory monopoly on the provision of legal services. Any time you do that, the demand is going to be greater than the supply. This is an effort to meet the unmet demand that’s caused by the simple economics of the fact that lawyers have a monopoly on the provision of legal services.
Again, it’s worked very well in the states and countries that have tried it. I think there were similar concerns when the forms came out about whether would this take work away from people. It hasn’t proved to be the case that it has. It’s there to help people who aren’t able to afford traditional legal services. This is a similar model with the service availability being capped by your income to ensure that this is not taking away work from people who could afford legal representation.
The other concern that we hear, and I welcome these thoughts and any thoughts, but especially these thoughts are helpful on whether are there unintended consequences. There are some of these areas where it might look simple, but it can get complicated pretty quickly. You don’t know what you don’t know in some of these areas. How do you know if a paraprofessional might be straying into an area where it could get complicated and they could do something that might cause lasting harm to their client because they’re not familiar with the complicated issues that they’re getting into?
We’ve been taking we take those comments very seriously. I know Kennon and her group and the court throughout the process have welcomed those to be sure that we have the right guardrails in place to say when you get into one of those, what are those areas? We want to know what they are so that we can tell them not to do that or bring in a lawyer to consult. There is a mechanism for paraprofessionals to withdraw or say, or to refer somebody to a lawyer to do a piece of the work if it’s outside the scope of what they can do.
I think another thing we grappled with in terms of unintended consequences is whether by identifying the things that these individuals could do, there would be some implication that if the list didn’t include things paralegals are currently doing, paralegals could no longer do those things. You’ll see in the proposal, it’s very explicit that this is not intended to have any impact on what paralegals are doing and can do. Another area in that regard that came up along the way is what people can do in other aspects like court navigation.
This came about from the court rather than the working group but I applaud the court for doing this and laying out what people can do as a matter of course, and helping people navigate through the court system, directing them to a particular form. I know when I was a rules attorney at the Supreme Court of Texas, I did things like that a lot because. At that time, my number, title, and name were on the court’s website. A lot of people from the state are like, “I get to call a rules attorney.”
I don’t want to say, “I cannot help you at all.” I’d be like, “Have you looked at this website? How about this website? There is a free set of rules available on this other site.” You cannot do much but those are certain things you can do that can make a huge difference that are not the practice of law. The court was very helpful in laying out some things that are not the practice of law and that people can continue to do in our state to help people in need.
Anyone who’s ever called the Supreme Court Clerk’s Office has seen that in action because they are so helpful, even with weird questions, especially with all these new courts coming online. They’re great.
Blake told me that he asked me to say something to you about the calls he’s getting.
He needs to stop answering my questions, and maybe I’ll quit calling him.
The other funny or maybe semi-funny thing I was going to say, it’s Friday afternoon. We’re having a little fun with this while we can. Kennon, do you mean to say that Jackie’s phone number is not listed on the website?
That is correct, Todd.
All questions, including all comments, are rules comments at TX courts.
That’s right.
No name, no number. That started before Jackie. I think it was shortly after I left and I thought, “I didn’t even think that was an option.” All joking aside, I’m glad it was there because it gave me such insight into the struggle that people have with understanding how to navigate a complex legal system. They don’t know where to start. I understand why. You begin to appreciate the realities of so many people in our state trying to navigate this complex legal system.
When I hear people say, “This is subpar second class.” I’ve seen a lot of that and I’ve heard a lot of that. I think to myself, “It might be that you’re drawing the wrong comparison. You should be thinking perhaps about whether it is better to have someone who’s trained and licensed to help you through this process than nobody, as opposed to thinking about whether it would be better to have a lawyer than this paraprofessional or court access assistant?”
I say that not to be critical, but rather to acknowledge the realities because how we went about this process and identifying need was looking at the self-represented litigants in large part. This is the comparison we need to think about if we’re going to assess whether this is going to make a difference in a meaningful, good, powerful, and sufficiently protective way.
I think we would be remiss if we didn’t talk about the actual rules proposals a little bit. We could keep going. This is fascinating. Just to be clear, we’re talking about two different kinds of, I guess one is licensed legal paraprofessional and the other is court access assistant. Why don’t we take each one of those and hit the high points of what those folks are going to be able to do to help meet the need to fill the justice gap?
Kennon, you want to start us off.
As you identified, Todd, there are two categories, licensed legal paraprofessionals and court access assistants. The licensed legal paraprofessionals, I’ll call them LLPs for short, as a general rule are going to be licensed. I think this is true across the board. They’re going to be licensed in particular subject areas. Those areas are spelled out in the rules. In addition to being able to help in a limited scope way in those subject areas, if they’re licensed in those areas, they’ll be able to represent individuals in justice court cases. In the justice court case, you don’t have that same subject matter restriction.
When we think about why that might be the case, some reasons that I’ll provide with open arms for Justice Busby to supplement are that it’s a non-record court from which you have a de novo appeal. It’s also a court where you see such a high number of self-represented litigants in the courtroom. The idea is to have these LLPs who have the training, experience, and licensure, helping individuals on a little bit broader basis if you will in the justice court context.
They’ll be permitted to do everything like eviction defense, that type of work too.
Jody, I’m glad you asked that question because the existing statutes and rules allow for people who are not lawyers to represent individuals in eviction cases. That’s already on the books. That’s precisely why when you look at the types of licenses for the LLPs, you don’t see landlord-tenant. It’s because you already have an existing rule that allows for representation by people who are not lawyers in eviction cases. Yes, they’ll be able to help with those cases as they can today.
The court access assistance has a much narrower scope in terms of what they can do in the sense that they have to be supervised by a sponsoring entity, which is laid out in the rules. They have to essentially go through some lighter training and always have that supervision at every step of the way. They are in the justice courts as well to provide assistance to individuals, specifically low-income individuals. That’s a very high level.
I do want to ask about the low-income piece. I guess number one, how do you define it and verify it? Is that a restriction on both types of licenses or is that only on the court access assistance?
It’s both across the board. Low income is defined in the rules to mean at or below 200% of the federal poverty guidelines as published annually by the US Department of Health and Human Services. That definition was selected at least at the working group level. I cannot speak to the court decision-making process, but at the working group level, that was selected in large part because it’s a common standard for legal aid entities and other nonprofit providers who are assisting low-income individuals in our state already. The thought process was those are the entities that are likely to employ a lot of these LLPs and also the court access assistance that has come about through the court’s proposed rules.
That’s one thing, if they’re got to be employing them, it makes sense to have a standard they’re already commonly following. Also when you think about the reality that these individuals may try service provider one and maybe there’s a conflict or maybe that person is too full with business to help and so they move on to service provider two and if you have a common standard across the providers, the individual is more likely to be able to qualify for assistance and also get assistance as efficiently as possible.
One thing that may be helpful for people to know too is who are the people that can apply for this and what’s the process like. For paraprofessionals, there are some general experience requirements, for example, a paralegal certification, certain kinds of work experience, a bachelor’s degree, and things like that. You also have to have some specific training or experience in the subject matter where you’re getting your license because again these are limited-scope licenses for family law, probate in estate law, and consumer debt law, and only for certain subjects within each of those areas.
There’s a subject-specific examination that they have to pass. They also have to go through a character and fitness process like lawyers to be sure that we have ethical people who are doing this work. There’s an ethics exam they have to pass and CLE requirements as well. That’s for the paraprofessionals. For the court access assistance, they’re directly under the supervision of their sponsoring organization. Their fees are being paid by whichever organization they’re associated with, whether it’s Legal Aid or another nonprofit that gets funding from the Access to Justice Foundation or other types of entities like that.
They handle the training. There is training for them, but they’re not practicing. They’re not going off and representing somebody in court on their own. The requirements for getting one of those licenses are less because the organizations are supervising them directly. This is a concept that’s had a lot of success in Alaska, for example, with Alaska Legal Services, placing people out in the community to help people identify that they are with trusted community organizations where people come for help, and then help people realize, “This problem is a legal problem.”
A lot of people know that they have a problem, but they don’t know what the solution is. There could be a legal solution to this problem and then help connect them with the right person who can get that done. It helps with the uptake of legal services and getting them to the people who need them. The court access assistance can help with that. It also helps the money go further than we get from the legislature and that we get from private donations and Congress because these people don’t have to pay them as much as lawyers. If they’re handling simple kinds of legal tasks under supervision, then you can stretch your budget further and serve more people.
I’m sure that the the justice court judges appreciate it too because they have their own unique job to help develop evidence and so having somebody there to guide them through that process certainly increases their efficiency.
Jody, we had justice and court judges involved with the process. At the time he was a JP, Judge Nicholas Chu, Nick Chu, and also Judge Sylvia Holmes were very helpful in identifying what’s happening now and how it could be improved. Again, they’ve been living already with rules that allow for individuals who are not lawyers to represent others in justice court proceedings. They have some firsthand experience that I thought was invaluable.
We will be sure and drop a link to the rules, the order approving that’s still subject to public comment to make it easy for people to pull those up. We’ll include a link in this episode. One question that has come to mind as I’m listening to this discussion is whether we know the timeline for when the rules are going to be finalized essentially, but what about the timeline for getting this thing off the ground? What does it look like from December 1 when the rules are anticipated to go into effect to ex-date when the first LLP gets a chance to do their thing and fulfill the promise that’s laid out in these rules?
Just to be clear, December 1 was the target that we set to put this out there but we’re waiting to see what comments we get, what feedback we get from folks who are commenting from the public, from the legislature, and others because we want to make sure and take the time and care with those that we need to get this right before we issue by our rule. Whenever that happens, then there will be a process of probably a few months while the state bar and the Board of Law examiners are getting the exams ready to go, setting up the application process, and those sorts of things. There will be a few months needed to get those logistics done before they’re accepting applications from people for these new licenses.
I guess for the licensed legal professionals in particular, are we anticipating that they will both be housed within legal service organizations and then maybe hanging out their own shingles too, taking fees directly? Does it allow for both?
Yes. For the paraprofessionals, it does, but not for the court access assistants. They’re only with the Access to Justice Foundation-funded organizations or legal services-funded or other charitable-type organizations that are already doing this work. For legal paraprofessionals, we’ve seen in other states, for example, that sometimes they’ll work in law firms like there’ll be a family lawyer and they’ll bring a paraprofessional in and they can actually expand the scope of their services, and make more money because they’re serving a segment of the market that cannot afford to pay the lawyer’s fees, but they can afford to pay something. The lawyer can expand the services that he or she is offering by bringing in a paraprofessional to help those folks.
On that note, there are some things of course that the LLPs can do only with lawyer supervision. When we think about how this will work, there could very well be some people who hang a shingle, but in certain areas of the law, even if they do that, they’re still going to have to get a lawyer involved to supervise them in carrying out the rules.
In terms of the ethical rules, is there going to be a whole new code specifically written for this? Are they going to be grandfathered into the attorney rules with some variations?
Most of the attorney rules will apply. There are some that are not applicable to the type of work that these folks are doing. We have gotten some good comments from the State Bar Board on that interplay to see exactly how many of the attorney ethical rules we need to apply to this particular type of work. That’s something we’re going to be taking another look at in light of some of the comments we’ve received.
The current code of ethics is in Section 9 as proposed. As Justice Busby said, it could change in light of public comments received but it is helpful to see where the court was with the initial order. For people who are wondering how this list came out, the court played a role in putting it out. Before that, with the working group. Lisa Hobbs’s subcommittee in particular looked at existing standards for paralegals as a base because we do have those on the books and they could see what the paralegals are subject to now in terms of ethics.
They understood that we’re not talking about paralegals as we understand them today. However, there’s a lot of information in existing standards that could be carried over. You’ll see that what’s there comes from the ethics rules governing lawyers to a degree, and there’s also the influence of existing paralegal standards in there.
One thing that we have to balance here too is we want all the regulation that we need, but we don’t want any regulation that we don’t need. What is that? The paraprofessional, in one state, this program has failed, and it was Washington State and it’s generally considered that it did that because of over-regulation. It was so burdensome to apply for this and get licensed that nobody did it. If that happens, then the program is not going to work.
We want to be sure we have the regulation we need to be sure that people are competent that they’re ethical and that these are going to be good quality services, but we don’t want to make it so burdensome that people won’t undertake them. By the way, the reviews in Arizona and Utah from the programs they’ve had up and running for a few years there now are fantastic.
They follow up with the people who’ve received legal services from these paraprofessionals. They are super pleased with the services that they’re getting. You could probably count on two hands the number of complaints they have gotten in both states put together. It’s very small. People are very satisfied with the services. That’s part of what gave us the confidence to undertake this.
I think something the court put in its initial order that will be very useful if it gets carried over is the requirement for reporting on the individuals who participate in the program. We came to appreciate when trying to understand at a more granular level the needs in regard to subject area and whatnot, that the data is often limited. You do what you can to identify the need through existing data, anecdotes, personal experience, etc. The court has incorporated a way to collect feedback that I think could be very useful in assessing how this program is working and perhaps even also in assessing how it could be modified in the future to address needs in a greater way.
When you consider either five million Texans out there that could potentially be subject to the service, it’s a game changer.
This is not going to solve the justice gap by itself. One of the other things I’d like to ask people to think about who are tuning in is what else should we be doing. That’s one of the things I ask people who come and say, “I don’t think we should have anybody but lawyers doing this.” I say, “Great. How can we solve the problem because pro bono and funding are not got to solve the problem? We already know that. We’ve been doing that for decades and that solves 10% of the problem. How do we solve the other 90% of the problem?” We have gotten some good ideas. I encourage people to continue thinking creatively and let’s work together to be sure that this is a profession that provides justice for all.
That’s a great place to wind up the substantive part of our discussion about the new proposals. We’ll certainly look forward to reading about the feedback that the court gets in the final version of the rules. As I suggested earlier, good is better than perfect sometimes. Sometimes you could study this. We’ve said already that it’s amazing that we went from point A to point B on this in two years, but getting it rolled out and getting it started and then making incremental changes to address whatever squeaky parts are there that haven’t been anticipated, that’s something that the court and the state bar is very good at doing already. We look forward to seeing how this goes and commend the commission and the court for its work in this area.
Thank you, Todd and Jody. We appreciate you having us on and your interest in this important issue for our state.
We’re not going to let you go quite that easy.
Before we let you go, we always wrap up with a tip or a war story since we have two people. We like being able to hold justice on instead of you telling us we’re dismissed. I’ll open it for either of you, both of you, if you have a tip, a war story, one of each, feel free because we always like to wrap up that way.
Do you want to start, Kennon?
Yes, I’m sorry about my phone ringing. The tip is to put your ringer on the silent when you’re on a podcast. Thank you. In all seriousness, this is not exactly a tip or a war story, but rather an ask of lawyers who are resistant to these proposals and in general to change. I think so often we have fear of change, even good change. When we’re assessing a proposal. At least I do this because I’m not above it.
I try to put my fear of change aside, read it once the way I took it initially, and then put my fear of change aside and read it again. For people who say this is never going to work or this could have all sorts of problems, I think we’re at a point with the justice chasm being what it is that we have to try. Rather than not try innovations, we should try them and see whether they work to reduce the justice gap because it is widening and it’s a problem too big to ignore.
I have, like all of us in this discussion, encountered firsthand people who are struggling mightily to understand how to navigate the legal system and it’s complex, they need help and this is a mechanism to try to get them help. To Todd’s point, let perfect be the enemy of good, let’s give it a go and see if it helps low-income Texans who are in dire need of help.
We have every reason to think that it will be based on the experience elsewhere with it or we wouldn’t try it. My tip on this is to be like you said earlier, Todd, don’t let the perfect be the enemy of the good. Is everything in this rule the way I would have written it? No. It’s important to hear everybody’s perspectives on how to do this and err on the side of, let’s see if we want to help a lot of people, we want to be sure that the paraprofessionals are doing what they have experience in training to do, and we want to think about it from the perspective of the user, the demand side.
All the Texans who are out there expect from their justice system that they will get a fair share. How can we configure this system that was not designed for them and was not designed to handle the capacity that it’s handling now? How can we reshape that in a way that’s going to meet their needs? It’s a multifaceted problem, but I think for lawyers to put themselves in the shoes of potential clients who cannot find a lawyer and think about it from that perspective is a tip for figuring out what we can do to be sure that all Texans have access to these kinds of services.
Very on point. Thank you so much for spending the time with us. It’s been very informative as we thought it would likely be. Hopefully, our audience and even those who don’t normally tune in to our show will hear this and learn something about what this is all about. As we’ve solicited a couple of times if there are comments on the proposed rules, by all means, get them in and we will stay tuned.
One last solicitation, Todd. Since Todd, Kennon, and I are all three on the call, we’re part of the planning committee for the very first Texas Bar Handling Your First Business Court CLE. It’s got to be December 12th in Austin. If you have an interest in it, we’re going to have practitioners, business court judges, and 15th Court of Appeals justices. Come join us and learn because we’re all learning as we go.
Kennon got off easy on this one. She’s not having to talk, but Jody is going to talk. I’m going to lead a panel of the 15th Court of Appeals. A panel of three is the entire court currently. That’s always going to be the case but it’s going to be a good event, as Jody said, December 12 here in Austin. You can register online through Texas Bar CLE, and there is a virtual attendance option, but we certainly would like to see as many faces as we can here in Austin on December 12th. Thank you again to both of you so much for being with us.
Thank you so much for having us and for all the thoughtful questions and the conversation. It’s been great.
It was a pleasure. Thank you both and thank you, Ken.
Thank you, Justice Busby.
Important Links
- Justice Brett Busby – LinkedIn
- Kennon Wooten – LinkedIn
- Scott Doug – Attorneys – Kennon L. Wooten
- KennonTx – Facebook – Kennon Wooten
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