In an order, the Supreme Court granted preliminary approval for rules that allow licensed legal paraprofessionals and court-access assistants to provide certain services to low-income individuals. The court is seeking public comments on the proposed rules by Nov. 1 and expects they will take effect a month later, according to the order.
"Many individuals have incomes low enough to qualify for assistance from legal aid and volunteer attorney organizations, but resources and staffing constraints allow these organizations to serve only a small fraction of qualified applicants," the order states.
The Supreme Court noted that frequently "the only option for individuals who cannot be served is to attempt to represent themselves in court proceedings."
"For years, the court has made combating this 'justice gap' a top priority, and it has become clear that we must think beyond traditional efforts — such as funding and volunteer work — and focus on reforms that will help bridge the justice gap with new providers," the court added.
The court's order defines low income as at or below 200% of the federal poverty guidelines.
Steve Benesh, president of the State Bar of Texas, told Law360 Pulse on Tuesday that the board of directors will provide comments to the court regarding the proposed rules after it has had time to thoroughly review Tuesday's lengthy order. Benesh also encouraged any Texas lawyer or member of the public to take advantage of the comment period if they have suggestions or concerns.
Benesh said that "it's obvious how thorough the work of the court and other constituencies has been" and said he "applauds" the commitment they've made, noting that part of the bar's mission is to ensure access to justice for all residents of the state.
April Faith-Slaker, executive director of the Texas Access to Justice Commission, told Law360 Pulse in an email Tuesday that, "The Texas Access to Justice Commission was honored and privileged to have been asked by the Supreme Court of Texas to study these issues and to make its recommendations to the court."
"Throughout that process, it became apparent that allowing licensed paraprofessionals to provide limited legal services to low-income individuals and authorizing certain types of court-access assistants would be an important step towards closing the growing justice gap," Faith-Slaker said. "We are hopeful that the court's order will help bridge the critical justice gap faced here and across the nation and look forward to its implementation here in Texas."
Tuesday's order comes after the Access to Justice Commission unanimously voted at a meeting last year to support recommendations to the court for allowing nonattorneys to provide limited services. The commission, however, voted 6-8 against nonlawyer ownership, a concept that received heavy pushback from the Texas legal community ahead of the vote.
The Supreme Court order Tuesday did not address the nonattorney ownership issue.
Instead, the proposed rules provide a comprehensive framework for the licensing of legal paraprofessionals and court- access assistants — those sponsored by an approved legal assistance organization — and detail the services they are authorized to provide. There is not a general license available. Nonattorneys are required to have subject-matter-specific licenses before they can offer services under the detailed guidelines.
Texas Supreme Court Justice Brett Busby, who serves as the liaison between the court and the Access to Justice Commission, told Law360 Pulse on Tuesday that paraprofessionals who may become licensed under the proposed rules will be able to appear with clients in Texas courts of record: district courts and county courts at law. They may also appear in the justice courts, which are not courts of record, while court access assistants may only appear in justice courts under the sponsorship of legal assistance organizations.
Approved legal assistance organizations include nonprofits which are funded in part by the Texas Access to Justice Commission or Legal Services Corporation or an organization which provides at least 50% of its legal services at no cost to low-income clients. Legal assistance organizations also include clinics or pro bono programs offered by Texas law schools and pro bono projects or programs of the Texas bar or of a local or specialty bar association within the Lone Star State, the order said.
Under the proposal, for example, paraprofessionals could assist with family law, estate-planning and probate law, and consumer debt law matters.
Paraprofessionals must pass an ethics exam before they can be licensed and they are subject to bar disciplinary action. They are prohibited from providing immigration services and there are limitations on the types of services they may offer within each subject matter where they are licensed.
For example, a paraprofessional licensed in family law is permitted to handle matters related to uncontested divorces and child custody orders, but any case where the Department of Child and Family Services is a party is excluded. There are some services identified that can only be offered if a paraprofessional is supervised by a licensed attorney.
Justice Busby said that while legal aid organizations and lawyers who perform work pro bono do a great service, the "problem is so huge we've got to find other ways to meet the need."
The rules proposal represents work that began in late 2022, when the Texas Supreme Court tasked the state's Access to Justice Commission — which was created by the court more than two decades ago — to look into "existing rules and propose modifications that would allow qualified non-lawyers to provide limited legal services directly to low-income individuals," Tuesday's order said.
Justice Busby praised the work of the commission and said members of the Texas bar were instrumental in identifying what kinds of legal services could be performed by a paraprofessional.
"The court and I personally are very grateful to everybody involved in the process," Justice Busby said.
The commission created the Access to Legal Services Working Group, which in turn developed subcommittees that made deep dives into areas like scope of practice and licensing requirements, which are reflected in Tuesday's order, the court said.
"Subcommittee members carried the laboring oar, meeting many times in 2023 and working between meetings to ensure timely completion of the tasks assigned to them," the order said. "The working group also sought and collected input from others throughout the process, including by conducting an online survey, conducting focus groups, visiting with stakeholders in and beyond the State Bar, and creating an email inbox for suggestions with assistance from the State Bar."
--Editing by Kelly Duncan.
Update: This article has been updated to include comments from Texas Supreme Court Justice Brett Busby.
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