Jackson County is a vast expanse of northern Colorado wedged between mountain ranges and the Wyoming border. Its 1,621 square miles include the North Park basin and the headwaters of the North Platte River. Since 1913, an elegant classic revival courthouse has graced Walden, the county’s only incorporated town. The building includes the sheriff’s office, the clerk and recorder, and the county court. But, if a “North Parker” needs legal help, they have to look somewhere else — there is not a single attorney in private practice within 50 miles in any direction listed in the Colorado Bar Association’s directory. Jackson County is, without a doubt, one of Colorado’s largest and most barren legal deserts.
Colorado is facing a crisis of justice. Every year, thousands of people go through civil proceedings without representation, and an untold number fail to pursue valid claims because of the complexity of the judicial system. Three-quarters of the parties in domestic relations cases are unrepresented, as are 98% of tenants in landlord-tenant disputes. Office of Attorney Regulation Counsel data indicates nearly half of our counties have fewer than 25 lawyers, and many have fewer than 10, including judges, district attorneys, public defenders and government attorneys. Crowley County, home to almost 6,000 people, does not have a single lawyer.
People like to complain about attorneys. Depictions in the media of sleazy lawyers and high publicity trials where a criminal seems to “get off” because of his or her lawyer certainly does not help our reputation. In reality, though, having a lawyer can mean the difference between losing or winning a claim. From 2014-2016, Denver renters who were represented by counsel prevailed in 94% of eviction proceedings, compared with 32% of unrepresented tenants. In domestic relations cases nationwide, unrepresented individuals requesting protection orders succeed less than a third of the time, compared with 83% who hired a lawyer. Similar outcomes have been documented in administrative proceedings dealing with unemployment, government benefit, and disability claims.
While the economics, small populations and self-reliance ethos of many of Colorado’s legal deserts make them unattractive for lawyers, Colorado Rule of Professional Conduct 5.5’s strict prohibition on the practice of law without a license exacerbate the challenges of offering legal services across huge swaths of the state. Arizona, New Mexico and Utah, in an effort to fight growing legal deserts within their borders, have all enacted programs allowing nonlawyers to assist clients with certain legal matters. Colorado is falling behind our sister four-corners states.
While most legal disputes require the specialized training and experience offered by a licensed attorney, there are some repetitive, transactional proceedings that could be handled by trained nonlawyers to the benefit of both clients and courts. Landlord-tenant matters, uncontested divorces, mid-sized claims, collections, repossessions, administrative proceedings, state licensing, real estate purchases and drafting wills for low- and even middle-income individuals are all practice areas that are unprofitable, or ones where attorney fees make hiring counsel nonviable.
Regulated nonlawyers should be able to write legal documents, complete court paperwork, negotiate settlements and, in limited settings, represent individuals in court. Similarities can be found in tax preparation and financial advising, where flat-fee companies have begun widely offering affordable services once reserved only for wealthy clients. Medicine has also seen the emergence of nurse practitioners and physician assistants who independently treat patients. It is time for Colorado to catch up by allowing nonlawyers to practice in areas traditionally reserved for attorneys.
While some reasonably worry about the quality of nonlawyers’ work product, strict training requirements and limitations on nonlawyers’ practice areas should ensure that they are an asset, not a detriment, to their clients’ interests. Nonlawyers, though, must have enough professional autonomy and large enough areas of practice to be able to set up profitable and fulfilling offices. The state of Washington’s “Limited License Legal Technician” program failed in part because it restricted nonlawyers to only certain family law matters.
For those who are concerned about the impact that practice by nonlawyers will have on new attorneys just starting out, or that it will price lawyers out of the profession, the evidence suggests that there is a vast amount of legal work that lawyers simply aren’t doing. Allowing nonlawyers to serve these clients will have no effect on books of business.
Much could be done to incentivize lawyers to hang a shingle in Colorado’s underserved communities.
Expanding Colorado Legal Services would be a good start. Student loan forgiveness for recent graduates who practice in a rural county, modelled on the National Health Service Corps Loan Repayment Program, is another.
Matching funds from courts or the state could also encourage attorneys to offer low-priced services in high needs areas. In the long run, this may even save money by reducing the administrative burden placed on judges by pro se litigants. But, until these solutions are implemented, revising CRPC 5.5 and authorizing limited legal services by non-attorneys would do much to ensure access to justice is not dictated by what county you live in.
— Nicholas Monck is a former President of the University of Colorado Law School’s Student Bar Association. He served on the American Bar Association’s Law Student Division’s Nominating Committee from 2018-2019. He previously worked as a staff adjudicator in the Colorado Department of Human Service’s Office of Appeals where many of the litigants were pro se.