Assumption Busting in UPL Reform
By Abigael McGuire
ASSUMPTION: Only lawyers can give legal advice.
BUSTED: When we assume only lawyers can give legal advice, we leave many people, like survivors of domestic violence, with nothing. When we prioritize new and innovative service models—like UPL reform—we increase access to justice and connect more people to legal help.
Most survivors of domestic violence don’t have access to legal help.
The justice gap, or “the difference between the civil legal needs of low-income Americans and the resources available to meet those needs,” acutely impacts survivors of domestic violence. (1) According to the 2022 Justice Gap Measurement Survey, “98% of low-income households with recent domestic violence survivors experienced at least one additional civil legal problem in the past year.” (2) Survivors “[d]id not receive any or enough legal help for 88% of substantial problems.” (3)
Survivors have trouble accessing legal help both because attorneys are expensive and because the demand for free legal help dramatically outweighs the supply. (4) In Arizona, where Innovation for Justice (i4J) is located, legal help is the number one unmet need identified by survivors—greater than a need for housing or other support services. (5) Nationally, survivors “report more negative consequences from domestic violence than from any other civil justice problem. These consequences include the onset or exacerbation of mental health problems, negative emotions, and financial loss.” (6)
UPL reform increases access to justice and connects more survivors to legal help.
i4J designs, builds, and tests disruptive solutions to narrow the justice gap, including solutions targeted at the unmet civil legal needs of domestic violence survivors. i4J is 2 years into its Licensed Legal Advocate initiative, a first-in-the-nation program that equips domestic violence advocates in the non-profit sector with legal training to provide trauma-informed legal help to survivors navigating a civil legal problem. Licensed Legal Advocates (LLAs) operate under a UPL carve-out from the Arizona Supreme Court.
You might be wondering—what is a “UPL carve-out”? UPL stands for “unauthorized practice of law.” In nearly every state, UPL restrictions prohibit anyone who is not a licensed attorney from providing legal services. The LLA pilot is one of the first projects in an emerging national effort to reform UPL to allow people who aren’t attorneys but have specialized legal training to provide legal services, including legal advice, to community members. LLAs are allowed to provide limited scope legal advice to survivors as part of their survivor-centered services. The domestic violence advocates who receive LLA certification are already helping survivors with many other needs—housing, safety, childcare, education, job placement, financial security—and now can also assist survivors with navigating pressing civil legal issues such as the need for a protective order, divorce and child custody.
Readers might find it helpful to compare new UPL-reformed-based service models to other “tiered” professions, such as medicine. When you book a doctor’s appointment, you might end up seeing a nurse practitioner or physician assistant instead of a physician. These professionals are skilled, knowledgeable, and can perform many of the same duties as a doctor. Ultimately, they give accurate diagnoses and provide safe and effective treatment—just like physicians. It’s not that patients don’t “deserve” a “real doctor.” Rather, it’s that patients deserve quality healthcare in the face of an ever-worsening physician shortage. (7)
Early stage data indicates that survivors value legal help from LLAs.
While evaluation is still ongoing, data from LLA pilot exit surveys indicates that the majority of survivors who worked with an LLA found the interaction positive and helpful. One survivor described the LLA she worked with as “very detailed, knowledgeable, and kind” and “incredibly understanding about the situation.” Another said that the LLA “was pleasant and very knowledgeable” and the LLA “stressed important points to remember and that helped a lot.” Another survivor emphasized that the LLA’s patience and kindness “helped a lot.” Additional survivors reported that “the support at any given time was much appreciated,” and the LLAs were “helpful” and “amazing.”
Advocates are skilled, knowledgeable, and can perform many of the same duties as a lawyer. They can effectively assess civil legal problems and provide sound legal advice. In some ways, advocates are more qualified to help survivors than many attorneys: advocates build strong relationships with survivors over the course of the survivor’s exit process, and survivors may be more likely to trust advocates as a result. In addition, domestic violence advocates are trauma-informed and trained in domestic violence dynamics, which attorneys may not be.
Additional data collected this semester by students in i4J’s Legal Innovation and Policy Advocacy course confirms that advocates nationwide are ready and willing to provide legal advice to survivors. When asked whether they would like to be able to give legal advice to survivors, advocates said things like…
“I think the positive outcome of that would far outweigh any concerns that I have.”
“I can’t even put into words how exciting that option would be.”
“I would love to if I had the opportunity, if I could.”
“[To] be able to provide [legal advice to survivors] to make sure that what they're submitting is relevant and meets the legal requirements so that they're not walking in blind and can just have a better opportunity of getting the protection they need.”
“We could give them some hope. Because they've been in a situation where they're, they've been manipulated into, hey, by the way, you cannot leave me because you're not getting anything. You're not going to make it out there.”
“I would think that that would help empower people to seek the services as well, if they knew that there was more access to people, you didn't necessarily have to pay an arm and a leg for.”
“It would just be awesome to be able to tell someone, hey, like I can genuinely help, like I can, not a hypothetical way.”
Here at i4J, we dream of a world in which the justice gap is eliminated. Upskilling lay legal advocates to act as trusted legal advocates for the most pressing legal matters confronting survivors of domestic violence is getting us one step closer. (SPARKLE HEART)
If you’re curious about other contexts in which lay legal advocates have been “upskilled,” check out these other i4J projects:
i4J’s research in this space is synthesized in its 2023 report, Leveraging Regulatory Reform to Advance Access to Justice.
References
(1) Executive Summary | The Justice Gap Report, Legal Services Corporation (visited December 6, 2023).
While this blog post uses the term “domestic violence” to describe abuse within a relationship, other academic pieces use the term “intimate partner violence.” The terms “domestic violence” and “intimate partner violence” are nearly synonymous; both describe “a cycle of violence demonstrated through control and abuse that exists in a . . . relationship.” Ron Wallace, Domestic Violence and Intimate Partner Violence: What’s The Difference?, American Military University. (Oct. 15, 2015).
Some prefer the term “intimate partner violence,” arguing that it reflects the modern, broader societal understanding of violence in relationships. Id.; see also The Language We Use | Women Against Abuse (visited Oct. 22, 2022) (“the descriptor ‘intimate partner violence’ is a more recent term”).
(2) Domestic Violence | The Justice Gap Report, Legal Services Corporation (visited December 6, 2023).
(3) Id.
(4) Alissa Rubin Gomez, Demand Side Justice, 28 Geo. J. on Poverty L. & Pol’y 411, 418 (2021).
(5) ACESDV 2022 Statewide Survivor Needs Assessment.
(6) Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Problems, 2023 Utah L. Rev. 487, 536 (2023).
(7) AAMC Report Reinforces Mounting Physician Shortage, Association of American Medical Colleges (June 11, 2021) (visited December 6, 2023).