University of Colorado Law Review Spring 2001
*459 INCREASING ACCESS TO JUSTICE: EXPANDING THE ROLE OF NONLAWYERS IN THE DELIV-ERY OF LEGAL SERVICES TO LOW-INCOME COLORADANS
Marcus J. Lock
Copyright (c) 2001 University of Colorado Law Review, Inc.; Marcus J. Lock
Over the past century, our nation has made substantial progress in achieving racial FN1 and gender equality. FN2 Yet, with the arrival of the new millennium, economic discrimination still thrives in America. Nowhere is this more evident than in the judicial system. The most repugnant manifestation of the judiciary's economic discrimina-tion is the lack of access to legal services for low-income Americans. FN3
For the past few years, the Colorado legal community has been engaged in a heated debate over the delivery of legal services to low-income individuals. FN4 Pursuant to this discourse,*460 the legal community has promul-gated a number of proposals meant to increase access to legal services for low-income Coloradans. FN5 Perhaps the most promising, and certainly the most controversial of these proposals, was mandatory pro bono. Unfortunately, the Colorado Supreme Court, in May 1999, with the overwhelming support of the Colorado Bar Association, re-jected both a mandatory pro bono requirement and mandatory reporting of pro bono services. FN6 Instead, the court adopted an aspirational pro bono rule, requiring lawyers to provide fifty hours of service per year; FN7 how-ever, even its adoption lacked the support of the Colorado Bar. FN8
*461 Interestingly, at approximately the same time mandatory pro bono was rejected, the Colorado Supreme Court amended the Colorado Rules of Civil Procedure and the Colorado Rules of Professional Conduct to provide for the limited representation of clients. FN9 Otherwise known as the “unbundling of legal services” or “discrete task services,” the new limited representation rules allow an attorney to provide discrete legal services to an other-wise pro se party and to charge the client accordingly. FN10 Thus, a low-income individual who cannot afford full-fledged representation by an attorney can now “order” certain legal services “à la carte.” FN11 In contrast to the mandatory pro bono debate, the Colorado Supreme Court's approval of limited representation has been relatively uncontroversial, with dissent emanating only from the federal bench. FN12
Although a step in the right direction, permitting limited representation does not, by itself, go far enough to en-sure adequate access to legal services for Colorado's indigent. FN13 More radical measures, however, such as mandatory pro bono, have faced opposition and, ultimately rejection, by the Colorado legal community. FN14 Thus, the dilemma presents itself. An acceptable solution to the inadequate access to legal services for Colorado's indigent necessarily depends on two distinct but equally important components. On the one hand, the solution must be far reaching in order to achieve the desired outcome--an increase in the delivery of legal services to low-income Coloradans. On the other hand, the solution must secure the support of a seemingly conservative Colorado legal community.
*462 This comment argues that increasing the permissible scope of lay representation in Colorado is an effec-tive means of providing low-income Coloradans adequate access to the judicial system. Perhaps more importantly though, this comment seeks to establish that expanding the role of nonlawyers FN15 in the delivery of legal ser-vices to low-income Coloradans is a viable proposal because, unlike mandatory pro bono, it has the potential to se-cure the support of the Colorado legal community.
Part I details the inequities existing under the current system. Part II proposes expanding the role of nonlawyers in order to increase access to justice for low-income Coloradans. Part III, the heart of this comment, focuses on identifying support for this proposal within the Colorado legal community. Parts III.A and III.B analyze two recent attempts by the Colorado legal community--mandatory pro bono and the unbundling of legal services--to rectify the inequities of the current delivery system. Part III.A concludes that the Colorado legal *463 community's principal reasons for rejecting mandatory pro bono implicitly supports expanding nonlawyer roles. Part III.B concludes that the Colorado Supreme Court's relatively uncontroversial adoption of the new limited representation rules also sup-ports increasing the permissible scope of lay representation in Colorado. Finally, Part III.C examines the current status of nonlawyer representation in Colorado--including the amorphous concept of the unauthorized practice of law--and suggests that the Colorado Supreme Court's interpretation of this doctrine would permit an expansion in lay representation.
I. Low-Income Individuals Do Not Have Adequate Access to Justice Under the Current System
A. The Nationwide Neglect of Low-Income Individuals
Our current institutions are not able to deliver adequate legal services to low-income Americans. In fact, up-wards of eighty percent of the legal needs of the nation's poor are not being met. FN16 According to the Compre-hensive Legal Needs Study (“CLNS”), FN17 the most exhaustive survey of its kind, forty-eight percent of low-income households FN18 faced one or more civil legal issues during 1992. FN19 Of those low-income house-holds experiencing legal need, approximately half are facing more than one legal issue. FN20 Yet, seventy-one percent of these civil legal issues were not brought to the “system of justice.” FN21 Survey respondents cited cost as one of the primary reasons they failed to seek help from the judicial system. FN22
*464 B. Colorado's Neglect of Low-Income Individuals
Colorado's failure to meet the legal needs of its indigent may be even greater than that of the rest of the nation. FN23 Indeed, there is some indication that Colorado's poor experience annual unmet legal needs more than four times that of the national average. FN24 According to the 1990 census, approximately 500,000 Coloradans live in “low-income households” FN25 as defined by the CLNS. FN26 Based on CLNS methodology, more than 130,000 of these households are faced with civil legal needs in Colorado each year. FN27 Yet, during 1996, Colo-rado's legal services programs provided legal services to only 27,000 clients while pro bono attorneys served a mere 3000-5000 additional clients. FN28 Together, “legal services and pro bono attorneys met only an estimated twenty-five percent of the legal needs of low-income individuals in Colorado.” [FN29] This statistic is even more alarming when one realizes that “the legal difficulties of low-income Americans . . . frequently concern their ability to provide for basic human needs such as food, shelter, and health care.” FN30
The dire situation of Colorado's indigent has been compounded by recent cutbacks in federal funding for Colo-rado's legal services programs. FN31 In 1996, the Federal Government *465 reduced funding for legal services programs across the nation by one-third. FN23 Thus, total funding for legal services declined from $6 million in 1995 to $4.9 million in 1996. FN33 To date, federal funding has remained constant at the reduced level. FN34
The thirty-three percent reduction in federal funding devastated Colorado's civil legal services programs. FN35 The Legal Services statewide support office was forced to close its doors, and reduce its staff by sixteen percent in the remaining regional offices. [FN36 As a result, the availability of legal services to low-income Colo-radans has been severely curtailed. “[L]egal services programs have been forced to provide representation in fewer cases and only advice or brief service in more and more cases.” FN37
Finally, in addition to reducing the funding of state legal services programs, the Federal Government placed more stringent restrictions on the use of that federal money which remained available. FN38 For instance, legal services programs can no longer recover attorney fees or challenge welfare reform measures. FN39 The new re-strictions also prohibit legal services programs from utilizing the class action mechanism to serve large numbers of poor Coloradans at once. FN40
As demonstrated by the low number of clients served by pro bono attorneys, FN41 the availability of pro bono services in Colorado is also inadequate to meet the civil legal needs of the state's low-income residents. FN42 The Legal Services/Pro Bono Subcommittee of the Judicial Advisory Council concluded that “the number of pro bono attorneys has leveled off or fallen in recent years.” FN43 Nationally, it has been estimated that less than seventeen percent of attorneys participate in pro bono programs. FN44 In Colorado, surveys conducted by the Legal *466 Services/Pro Bono Subcommittee of the Judicial Advisory Council “portray a system in which more than half the lawyers in many of the state's judicial districts, including some of the state's most populous, are not participating in organized, bar-sponsored pro bono programs.” [FN45] In fact, estimates of attorneys providing pro bono services in Denver range as low as six percent. [FN46] Finally, similar to the now financially diminished Legal Services Pro-gram, existing pro bono programs have been forced to limit the type of legal services available due simply to a shortage of participating attorneys. FN47
One consequence of exorbitant litigation costs, reduced federal funding for Colorado's legal services programs, and the failure of the legal community to provide adequate pro bono representation, is an unprecedented abundance of pro se litigants throughout Colorado's judicial system. FN48 Evidently, Colorado's current institutions are inca-pable of providing adequate legal assistance to Colorado's indigent. FN49 Due to this institutional inadequacy, it is the duty of the Colorado legal community to introduce innovative measures that have the capacity to meet the low-income community's legal needs. Increasing the permissible scope of nonlawyer practice is one such measure.
II. A Proposal: Nonlawyer Practice is an Effective and Acceptable Means of Increasing the Delivery of Legal Ser-vices to Low-Income Individuals
Given the serious nature of Colorado's unmet legal needs, the time has come to accept nonlawyer practice as a viable solution to the failure of the bar to provide adequate legal assistance to low-income individuals. FN50 To date, nonlawyers have *467 been underutilized in providing legal services to low-income individuals. FN51 How-ever, progressive courts, FN52 the consumer movement, FN53 increased litigation costs, FN54 technology, FN55 and the inability of the bar to satisfy unmet legal needs have forced the bar to reexamine its opposition to nonlawyer practice. FN56 These factors indicate a continuing trend toward the inevitable expansion and accep-tance of nonlawyer practice. FN57
A. Benefits of Expanding Nonlawyer Practice
Numerous authorities have recognized the potential benefits associated with expanding nonlawyer roles in pro-viding legal services to low-income individuals. FN58 The most obvious *468 benefit of expanding nonlawyer practice would be the increased number of professionals dedicated to satisfying the legal needs of low-income indi-viduals, FN59 particularly in cases that may not justify the expense of an attorney or may fail to attract an attorney. FN60 Lay practitioners can fill this currently vacant niche in the delivery of legal services . FN61
Opponents of nonlawyer practice question the competency of lay practitioners. However, by narrowly focusing on a specific area of the law or engaging in a certain type of assistance, lay practitioners often develop not only competent, but highly specialized expertise. FN62 Consequently, another benefit of nonlawyer practice is that le-gal advice provided by nonlawyers in their areas of expertise is often superior to that which could be provided by licensed general practitioners. FN63
Finally, nonlawyer practice would increase not only the availability of quality legal service to low-income households, but also its affordability. FN64 Opponents of lay practice dispute this contention, arguing that compe-tent nonlawyers will charge rates approximating that of licensed attorneys. FN65 However, these critics fail to recognize the economic effect of increased competition. In those few instances where nonlawyers and the bar do compete, prices will drop and consumers will benefit. FN66
B. The Unfounded Rejection of Nonlawyer Practice
Notwithstanding the obvious benefits, the bar has repeatedly ignored the advice of numerous blue-ribbon com-mittees and has traditionally opposed any expansion of nonlawyer *469 practice. FN67 Colorado, too, has a his-tory of opposition to nonlawyer practice. FN68 Unfortunately, this history of opposition is perhaps best explained by the self-interest of the bar in restricting competition. FN69 As Professor Rhode points out, “No professional group, no matter how well-intentioned, can make disinterested assessments of the public welfare on an issue where its status and livelihood are so directly implicated.” FN70
As in the case of the self-interested bar's opposition, other claims that nonlawyer practice is detrimental to the public welfare are largely unfounded. Although few in number, studies which analyze the harm caused by nonlawyers indicate that such harm is relatively slight. FN71 For instance, one study conducted in five states over a period of sixty-one years determined that only eight percent of the prosecutions brought against those practicing law illegally alleged specific harm. FN72 Additional studies have reached similar results. FN73 In light of *470 these results, current regulations prohibiting non-lawyer practice are, at the very least, over encompassing. FN74 At worst, these prohibitions are entirely unjustified. FN75
C. Consequences of Rejecting Nonlawyer Practice
The bar's unjustified opposition to nonlawyer practice has two main consequences. First, and most importantly, the opposition by the bar to nonlawyer practice results in an inexcusable increase in unmet legal needs. FN76 Sec-ond, because the bar continues to oppose nonlawyer practice while remaining unable to meet existing legal needs, the bar's opposition to nonlawyer practice contributes to the public's negative perception of the legal profession. FN77 This negative perception of the legal profession is further exacerbated where nonlawyer practice prohibi-tions are upheld in the face of consumer demand. FN78
D. Regulation Not Rejection
The unscrupulous conduct of lay practitioners is a potential threat to consumers. FN79 Potentially, though, this threat is no greater than that posed by the conduct of the practicing bar. FN80 The main difference is that lawyers are subject to disciplinary controls. Thus, the appropriate solution to such a threat is not prohibition but regulation. FN81 The unscrupulous conduct of lay practitioners is a potential threat to consumers. FN79 Potentially, though, this threat is no greater than that posed by the conduct of the practicing bar. FN80 The main difference is that lawyers are subject to disciplinary controls. Thus, the appropriate solution to such a threat is not prohibition but regulation. FN81
*471 Admittedly, devising a regulatory mechanism would be the most difficult aspect of expanding the role of nonlawyers. While construction of a detailed regulatory program is beyond the scope of this comment, FN82 the conclusions of the American Bar Association Commission on Nonlawyer Practice (“ABA Commission” or “Com-mission”) are instructive.
The primary recommendation of the ABA Commission is particularly significant. The Commission concluded that “[e]ach state should conduct its own careful analytical examination, under the leadership of its [highest court] to determine whether and how to regulate . . . nonlawyer activity.” FN83 Although this Commission's work has been criticized for shirking its responsibility to develop a detailed regulatory regime, passing this duty to the states is the logical conclusion. FN84 A regulatory framework to govern nonlawyer practice in a state should be developed within the rules, regulations, and common law of that state. Moreover, as with the mandatory pro bono debate in Colorado, comprehensive discussion within the legal community should precede the ultimate decision concerning proper regulation of nonlawyers. FN85 Consequently, consistent with the ABA Commission's recommendation, it is the responsibility of the Colorado legal community, with the supreme court at the helm, to thoroughly develop a proper regulatory regime to govern nonlawyer practice. FN86
Notwithstanding its primary recommendation--that states develop their own regulatory mechanism--the ABA Commission on Nonlawyer Practice did set forth some broad regulatory principles to guide states in their ef-forts. First, an activity should be prohibited only if “no regulatory approach will effectively and economically achieve acceptably low levels of harm to consumers.” FN87 Conversely, “[i]f there is relatively little serious risk to life, health, safety or economic well-being, regulation*472 may not [even] be needed.” FN88 For those activi-ties, which fall between these two categories, the ABA Commission recommends devising a regulatory program. FN89
To this end, the “predicted costs and effectiveness of different options for reducing the predicted harm while avoiding counterbalancing negative consequences” should inform the consideration of various regulatory alterna-tives. FN90 Additionally, the state should consider whether “potential consumers of law-related nonlawyer ser-vices have the knowledge needed to properly evaluate the qualifications of nonlawyers offering the services.” FN91 Finally, and obviously, the state should determine if “actual benefits of regulation likely to accrue to the public outweigh any likely negative consequences of regulation.” FN92 As will be discussed in Parts III.B and III.C, these broad regulatory principles dovetail nicely with Colorado's treatment of unbundled legal service and its approach to the unauthorized practice of law.
Before determining the appropriate regulatory regime, however, the Colorado legal community must first accept nonlawyer practice as a necessary and effective means of providing adequate legal assistance to low-income Colo-radans.
III. Identifying Support for Nonlawyer Practice Within the Colorado Legal Community
Support for expanding the permissible scope of nonlawyer practice in Colorado is implicit within: 1) the Colo-rado legal community's rejection of mandatory pro bono; 2) the Colorado legal community's relatively uncontrover-sial approval of discrete task representation; and 3) the Colorado Supreme Court's approach to the unauthorized practice of law in Colorado.
*473 A. The Colorado Legal Community's Principal Reasons for Rejecting Mandatory Pro Bono Implicitly Support Nonlawyer Practice
Analyzing the Colorado legal community's recent debate over whether to institute mandatory pro bono provides insight into the institutional thought processes of the Colorado legal community with regards to the delivery of legal services to low-income individuals. This insight reveals the plausibility of implementing a proposal to expand the role nonlawyers play in delivering legal services to the low-income residents in Colorado. FN93
*474 1.A Brief History of the Mandatory Pro Bono Debate
Over the past few years, mandatory pro bono has taken center stage in a heated debate among the Colorado le-gal community concerning the delivery of legal services to the poor. In 1997, the Colorado Supreme Court asked The Legal Services/Pro Bono Subcommittee of the Judicial Advisory Council to investigate ways of increasing pro bono service performed by Colorado's lawyers. The Subcommittee's recommendations concerning pro bono service consisted of three distinct proposals: 1) revision of Colorado Rule of Professional Conduct 6.1 to require each Colo-rado lawyer under the age of sixty-five to perform pro bono service for the lesser of twenty-five hours or three per-cent of a lawyer's total work hours; FN94 2) adoption of a supreme court rule requiring Colorado lawyers to report the number of pro bono hours they perform each year; FN95 and 3) as an alternative to the mandatory pro bono proposal, adoption of American Bar Association (ABA) Model Rule 6.1, which contains an aspirational provision requiring fifty hours of pro bono service each year. FN96
In order to allow for a full debate amid the Colorado legal community, the Judicial Advisory Council (JAC), at its June *475 12, 1998 meeting, agreed to defer action on the mandatory pro bono proposals for at least six months. FN97 During this interval, the Colorado legal community engaged in numerous debates and discussions concern-ing mandatory pro bono. FN98 In addition, a survey conducted by the State Court Administrator's Office ascer-tained public opinion on the mandatory pro bono issue. FN99
The JAC, at its March 12, 1999 meeting, ultimately declined to recommend a mandatory pro bono rule to the Colorado Supreme Court by a vote of 11-11 with one member abstaining. FN100 The JAC did, however, unani-mously recommend mandatory reporting of pro bono services. FN101 Nevertheless, on May 28, 1999, the Colo-rado Supreme Court declined to accept this recommendation. FN102 The court reasoned that “we view the manda-tory reporting as a step toward the imposition of mandatory pro bono requirements. Since we are unwilling to arrive at that destination, we are also unwilling to take the first step.” FN103 The court's action is not particularly sur-prising. Just five months earlier, the Colorado Bar Association's Board of Governors rejected mandatory pro bono and mandatory reporting by a margin of 10-1 and 9-1, respectively. FN104
Despite the Colorado Supreme Court's strong opposition to mandatory pro bono, the court did manage to adopt a new aspirational pro bono rule based on ABA Model Rule 6.1. FN105 Unfortunately,*476 the prospect of its adoption fails to generate much excitement among proponents of indigent rights. FN106 Similar aspirational pro-visions found in the Lawyer's Oath, the comments to Colorado Rule of Professional Conduct 6.1, and the policy of the Colorado Bar Association have all failed to result in the adequate delivery of legal services to low-income Colo-radans. FN107 Indeed, the insufficiency of these pre-existing aspirational provisions contributed to the mandatory pro bono initiative in the first place. FN108 Even the JAC itself “[was] not persuaded that the adoption of ABA Model Rule 6.1 is likely to have a significant effect on the amount of pro bono service provided by Colorado's law-yers.” FN109 Moreover, the Council “is not aware of any studies which have been conducted to indicate whether the adoption of an aspirational pro bono goal has in fact served its purpose to increase the amount of pro bono ser-vice provided by lawyers.” FN110
2. Lessons Learned from the Mandatory Pro Bono Debate FN111
The debate over mandatory pro bono provides unique insight into the Colorado legal community's collective opinion of its obligation to provide adequate legal services to the state's low-income residents. Therefore, a careful analysis of this debate enables one to suggest the integration of nonlawyer practice*477 in a way that addresses the concerns of the mandatory pro bono opposition, thereby increasing its chances of acceptance. Accordingly, although mandatory pro bono was ultimately rejected, the thoughtful discussion it generated could still prove invaluable in rectifying the plight of Colorado's low-income individuals.
Importantly, the opposition appears to have conceded the propriety of two of the JAC's principal reasons for implementing a mandatory pro bono rule. First, the opposition admitted that, on its own, the Colorado legal com-munity had failed miserably to meet the legal needs of Colorado's indigent. FN112 The resolution of the Colorado Bar Association's Board of Governors opposing the mandatory pro bono proposals explicitly recognized the need for an increase in the availability of legal services to low-income Coloradans. FN113 Further, the resolution stated that “this problem is one perceived by the members of this association as requiring a social program that society as a whole should participate in resolving.” FN114 Second, the opposition does not appear to have challenged the as-sertion that mandatory pro bono would help to mitigate negative public opinion of the legal profession. FN115 A mandatory pro bono rule, proponents argued, would provide the Colorado legal community with proof of its efforts to increase the availability of legal services to low-income Coloradans, and therefore change the *478 negative pub-lic perception of Colorado lawyers. FN116 Although opponents of a mandatory pro bono rule appear to have largely avoided confronting these issues, they did successfully attack its adoption on a number of other fronts.
One popular criticism, for example, was that mandatory pro bono offended the professional character of the bar. FN117 A profession, these critics argued, is distinguished from other business endeavors by the dedication of its members to public service. FN118 The legal profession has historically demonstrated this dedication through its unparalleled commitment to civic service. FN119 Pro bono work is a manifestation of the spirit of public service, which defines the legal profession. Thus, to require pro bono service is to undermine the very essence of what it means to be a lawyer. FN120 Consequently, the very nature of pro bono work demands that it remain voluntary. FN121 As the age-old maxim says, you can't legislate morality.
Conversely, other mandatory pro bono opponents have argued that practicing law is indeed a business, and it is for this reason that pro bono work should not be required. FN122 This argument is often conceptualized as the good times/bad times dilemma. During times of prosperity, an attorney is simply too busy with paying clients to engage in pro bono legal work. Conversely, during economic recession, an attorney is just trying to make a decent living and cannot afford to devote time to pro bono work. FN123
This “economic argument” was especially divisive for the Colorado bar in the context of the mandatory pro bono proposal.*479 Those who could afford to treat the practice of law as a “purely professional occupation” tended to support the proposal because the economic argument simply did not apply to them. Conversely, small town attorneys, and others susceptible to the economic ramifications of a mandatory pro bono rule, often opposed its passage, notwithstanding their dedication to pro bono legal work. FN124
Additionally, opponents have argued that mandatory pro bono would result in incompetent representation. FN125 Lawyers who are required to perform pro bono legal work would do so grudgingly. FN126 Consequently, the quality of representation afforded to pro bono clients may suffer. FN127 Furthermore, even if an attorney is more than willing to perform pro bono work, the legal issues commonly faced by indigent Coloradans are often out-side her area of expertise. FN128 Thus, opponents have argued that the ethical requirement of competent represen-tation set forth in Colorado Rule of Professional Conduct 1.1 would be internally inconsistent with a requirement to perform legal services outside an attorney's area of expertise. FN129 This fear of incompetence may be com-pounded by concern that malpractice insurance would not cover pro bono representation. FN130
Finally, opponents argue that even if attorneys accepted mandatory pro bono in theory, insurmountable adminis-trative and enforcement difficulties would prohibit its implementation. FN131 For instance, a huge bureaucracy would have to be created to monitor each attorney's compliance with the new rule and ensure that purported pro bono cases fell within the rule's guidelines. FN132 Additionally, mandatory pro bono would require *480 more money and manpower to overcome the lack of competency issues described above. FN133
Mandatory pro bono was the most controversial and thoroughly debated issue to face the Colorado legal com-munity in recent years. The above arguments summarize the viewpoint of an ardent and ultimately successful oppo-sition. Notwithstanding the paucity of the ultimate outcome, the decisionmaking process brought to light the sever-ity and immediacy of the access to justice problem. Moreover, the debate exposed areas of common ground while narrowing the disputed issues. No one in the Colorado legal community doubts that Colorado's poor have insuffi-cient access to legal services. Nor is there any apparent disagreement that the situation must be rectified. The only discord resounds in choosing the appropriate method to achieve the desired outcome. Thus, although mandatory pro bono was ultimately rejected, the rationales relied upon to overcome the initiative can be used to predict Colorado's acceptance of an expansion in nonlawyer practice.
3. Why the Colorado Legal Community's Rationale for Rejecting Mandatory Pro Bono Supports an Expansion in the Role of Nonlawyers
The Judicial Advisory Council's Committee on Pro Se Litigants, another blue-ribbon committee charged by the Colorado Supreme Court with addressing inadequate legal assistance in Colorado, concluded that “the philosophy must be that the absence of counsel will not be an impediment to access to or use of the judicial system.” FN134 According to the discussion regarding mandatory pro bono, the Colorado legal community agrees with this asser-tion. FN135 Even the Colorado Board of Governors, which vehemently opposed mandatory pro bono, acknowl-edged the desperate need for legal services among low-income Coloradans. FN136 Moreover, the Board of Gover-nors conceded that the bar alone could not provide an adequate solution to the problem. FN137 Thus, in its state-ment opposing mandatory pro bono, the Board of Governors provided implicit support for expanding *481 the role nonlawyers play in delivering legal services to Colorado's indigent.
The Colorado Supreme Court's blue-ribbon Committee on Pro Se Litigants also determined that “[t]he presence of pro se litigants is an expression of a growing public need, and that need must be met in a way that the public will find appropriate.” FN138 Opponents of mandatory pro bono do not appear to have contested the propriety of this assertion either. FN139 The bar must find a way to rebuild public confidence in the profession. As with mandatory pro bono, expanding lay practice in Colorado would provide the Colorado legal community with proof of its efforts to increase the availability of legal services to low-income Coloradans. Accordingly, expansion of nonlawyer prac-tice would contribute substantially to changing the negative public perception of Colorado lawyers. FN140
For those who based their opposition to mandatory pro bono on its affront to the “profession” of law, allowing lay practice in Colorado seems equally offensive at first. However, through careful integration, the dignity and integ-rity of the profession will be maintained and, potentially, even enhanced. For instance, the unauthorized practice of law (“UPL”) doctrine is the regulatory mechanism by which professional integrity is ensured. It was originally in-tended to prevent a nonattorney from representing himself as a licensed member of the bar. The UPL doctrine would continue to serve this purpose, as lay practitioners will be required to clearly disclose to clients that they are not li-censed attorneys. Moreover, as will be discussed further in Part III.C, the complexity of issues involved, the amount at stake in the case, and the economic feasibility of obtaining representation by an attorney will limit the type of representation permissibly engaged in by lay practitioners. Thus, the structure of integration will itself implicitly recognize the unique benefits of retaining a licensed attorney and will therefore maintain the professional integrity of the bar.
Not only will opening the “practice of law” to qualified lay practitioners satisfy legal need and consumer de-mand while maintaining the professional integrity of the bar, it will, unlike *482 mandatory pro bono, do so with comparatively little impact on the bar. FN141 The pervasive impact of mandatory pro bono contributed greatly to its defeat. FN142 If the Colorado Supreme Court had adopted the mandatory pro bono proposal, every Colorado attorney would have been affected. Large firm attorneys in urban areas who already face billable hour requirements in the two-thousands would simply be forced to work more, or else face disciplinary measures. Conversely, rural opponents of mandatory pro bono hung their hats on the potential economic impact of being required to provide free legal services. FN143 Allowing lay practitioners to provide legal services, however, would have little impact on either group.
Lay practitioners would probably not engage in the types of services provided by large corporate firms, FN144 and even if lay practitioners did provide similar services, they would serve a different clientele. Moreover, the Colo-rado Supreme Court, itself, has acknowledged that lay practice is a viable alternative to consumers where the amount at stake does not warrant employment of an attorney. FN145
As for the rural bar, attorneys would benefit by not being required to provide free legal services. In addition, rural attorneys faced with a prospective client, who desires legal assistance but lacks sufficient means to pay the attorney's customary fees, would have the option of referring the indigent client to a nonlawyer provider. Thus, be it good times or bad, FN146 allowing lay practitioners to engage in the practice of law benefits both rural attorneys and rural consumers by increasing the options available to each.
Competition between attorneys and lay practitioners will certainly occur. But when it does, the consumer ulti-mately will benefit. FN147 Thus, if the bar wishes to rebut derisive claims that it perpetuates its monopoly at the expense of the public welfare, it must accept the small degree of competition associated with expanding nonlawyer practice. Before the bar quibbles *483 over the drawback of competition, it should not forget that its own failure to meet existing legal need initially sparked the debate over mandatory pro bono. Therefore, by allowing nonlawyers to fill a vacant niche in the delivery of legal services, low-income Coloradans would receive increased access to legal services at relatively little cost to the practicing bar.
The nature of lay practice also obviates competency concerns, which contributed to the defeat of mandatory pro bono. FN148 Whereas mandatory pro bono may have resulted in lawyers grudgingly providing legal services out-side their areas of expertise, nonattorneys will narrowly focus their practices by providing services in a single area of the law or by providing a single type of assistance. Therefore, lay practitioners would develop a level of expertise essentially unachievable in the mandatory pro bono framework. Additionally, mandatory pro bono would avoid many costs associated with training attorneys in unfamiliar fields, and regulatory mechanisms would help to ensure competence.
Finally, in the context of nonlawyer practice, careful integration of mandatory pro bono could address adminis-trative hurdles, another frequent complaint of mandatory pro bono opponents. For instance, if an expansion of nonlawyer roles is achieved by broadening the category of those permitted to engage in the practice of law as op-posed to narrowing the definition of the practice of law, FN149 the Colorado Supreme Court would bring lay prac-titioners under its regulatory authority. Therefore, the regulatory regime that currently governs attorneys could sim-ply be modified to apply to lay practitioners as well. This modification would minimize costs associated with regu-lating lay practice.
The cost of implementing nonlawyer practice in Colorado is, however, a valid concern. If the cost of establish-ing and regulating nonlawyer practice becomes too high, and this cost is then spread to nonattorney practitioners via registration fees or other cost-spreading mechanisms, it will impair the ability of lay practitioners to provide afford-able legal assistance. This concern is valid in other contexts as well, such as in establishing educational require-ments for nonlawyer providers. Nevertheless, the legal community must view the costs of expanding *484 lay prac-tice in light of the substantial benefit to low-income Coloradans.
Although hotly contested and ultimately unsuccessful, the mandatory pro bono proposal secured consensus on a number of issues. First, low-income Coloradans suffer from inadequate access to legal services. Second, our cur-rent institutions are incapable of providing these individuals with the assistance they so desperately need. Third, the legal profession must pursue creative solutions to this problem and implement an adequate delivery system as soon as practicable. Accordingly, the Colorado legal community must consider, and ultimately accept, an expansion in nonlawyer practice. This is a viable alternative to the imposition of mandatory pro bono and an effective means of satisfying the currently unmet legal needs of Colorado's indigent.
B. The Colorado Legal Community's Approval of Discrete Task Representation Indicates Support for Nonlawyer Practice
1. Adoption of and Justification for the New Limited Representation Rules
Interestingly, as Colorado attorneys vigorously debated the pros and cons of mandatory pro bono, the unbun-dling of legal services--another proposal meant to increase the availability of legal services to low-income Colorad-ans--quietly wove its way through the rule-making process, apparently without incident.FN150 The concept of unbundling legal services, or discrete *485 task representation, has existed for quite some time. FN151 It has re-ceived increased attention in recent years, however, due to the growing number of pro se litigants in Colorado courts. FN152 According to Colorado Supreme Court Justice Gregory Hobbs, there is at least one pro se party in approximately forty percent of the cases before Colorado's district and county courts. FN153 Parties often proceed pro se because they cannot afford an attorney, or they believe that an attorney is simply too expensive. FN154
Traditionally, agreeing to represent a client bound an attorney, legally and ethically, to: “(1) gather facts, (2) advis[e] the client, (3) discover [ facts of the opposing party, (4) research the law, (5) draft [ correspondence and documents, (6) negotiat[e], and (7) represent the client in court.” FN155 Accordingly, the client was re-quired to pay for this “entire bundle” of legal services. Therefore, under the old rules, obtaining legal assistance of-ten proved cost prohibitive for many low-income Coloradans. FN156
Pursuant to the new rules, however, clients can essentially order any of the legal services previously included in the full *486 bundle “à la carte.” FN157 Consequently, limited legal assistance is now available to many clients who would have previously proceeded on an entirely pro se basis. Under the new “unbundling” rules, FN158 not only may a lawyer and client agree to limit the objectives of the representation, but they may also limit its scope. FN159 In addition, the new rules permit an attorney to provide certain services to clients of limited means without making an entry of appearance. FN160 Finally, the new rules allow an attorney to assist in drafting documents for a pro se party without making an entry of appearance. FN161 Notwithstanding this allowance, any documents drafted with the assistance of an attorney must bear that attorney's signature. FN162
The comment to Rule 1.2 of the Colorado Rules of Professional Conduct (“Rule 1.2”) reflects the drafters' intent in adopting unbundled legal services. The comment provides that “the consultation with the client shall include an explanation of the risks and benefits of such limited representation.” FN163 Moreover, “[a] lawyer must provide meaningful legal advice consistent with the limited scope of the lawyer's representation.” FN164 Finally, the comment makes explicitly clear that the *487 limited representation rules do not excuse the lawyer from liability for providing negligent legal advice. FN165
The changes to Rule 1.2 only officially condone what was already ethically permissible under Colorado Bar Association Ethics Committee Formal Opinion 101 (“Formal Opinion 101”). FN166 Formal Opinion 101 recog-nized that:
Outside the courtroom, unbundled legal services are both commonplace and traditional. For example, clients often negotiate their own agreements, but before the negotiation ask a lawyer for advice on issues that are expected to arise. Sometimes, a lawyer's only role is to draft a document reflecting an arrangement reached entirely without the lawyer's involvement. Clients involved in administrative hearings (such as zon-ing or licensing matters) may ask their lawyer to help the client prepare for the hearing, but not to appear at the hearing. In each of these situations, the lawyer is asked to provide discrete legal services, rather than han-dle all aspects of the total project. FN167 Therefore, the CBA Ethics Committee concluded that discrete task representation is also an appropriate way to provide some degree of legal assistance to the vast number of pro se litigants flooding Colorado's courts. FN168 In order to achieve its policy goal of increasing legal assistance to low-income Coloradans, Formal Opinion 101 broadly interpreted the former version of Colorado Rule of Professional Conduct 1.2 to allow for the unbundling of legal services in litigation and non-litigation matters. FN169 The CBA Ethics Committee determined that “Rule 1.2 of the Colorado Rules of Professional Conduct allows a lawyer and client to limit the scope of the lawyer's rep-resentation.” FN170 In reaching this conclusion, the CBA Ethics Committee reasoned that “the creation of barri-ers to the procurement of legal advice by those in need and who are *488 unable to pay in the name of legal ethics ill serves the profession.” FN171 Interestingly, as discussed above, the language of the newly enacted Rule 1.2 has been broadened to explicitly condone limitations on the scope of representation. FN172 Thus, one could infer that the Colorado Supreme Court Rules Committee did not think the pre-existing version of Rule 1.2 supported the CBA Ethics Committee's sweeping interpretation. FN173 Nevertheless, Formal Opinion 101 exemplifies how creative problem solving coupled with the inherent flexibility of the Rules can overcome superfluous barriers to the pro-curement of legal services by low-income Coloradans. Moreover, Formal Opinion 101, as well as the Colorado Su-preme Court's subsequent modification of Rule 1.2, indicates a willingness within the Colorado legal community to pursue innovative solutions to the inadequate availability of legal assistance. FN174
2. Why Colorado's Acceptance of Limited Representation Supports Expanding the Role Nonlawyers Play in Deliv-ering Legal Services to Low-Income Coloradans.
The realization that unbundled legal services would increase the availability of legal assistance to a number of low-income individuals served as a major catalyst to the adoption of the limited representation rules. This same rationale supports an expansion in the role nonlawyers play in delivering legal services to Colorado's needy. First, as discussed in Part III.B.1, Formal Opinion 101 was issued to further a policy goal of increasing the availability of legal assistance to low-income Coloradans and to assuage the impact of pro se litigants on Colorado's*489 courts. FN175Expanding nonlawyer practice will serve these same ends. FN176 Secondly, the CBA Ethics Committee liberally interpreted Rule 1.2 to allow for limited representation because “the creation of barriers to the procurement of legal advice by those in need and who are unable to pay in the name of legal ethics ill serves the profession.” FN177 Similarly, ethical provisions, which presently deter lay representation, should be interpreted or modified to permit nonlawyer practice beneficial to the public.
By officially condoning the unbundling of legal services, the Colorado Supreme Court implicitly acknowledged that the legal profession is becoming more and more consumer driven. Thus, if there is a consumer demand for nonlawyer representation, it is the responsibility of the Colorado legal community to satisfy it. Otherwise, the pub-lic will continue to view the bar's monopoly with suspicion. Moreover, allowing limited representation permits the consumer to exercise increased control over the scope and objectives of the representation. Thus, the uncontrover-sial adoption of the new unbundling rules reflects the Colorado legal community's recognition that the consumer has the ability to shoulder a higher proportion of the responsibilities of representation. In fact, the comment to the new Rule 1.2 acknowledges the ability of consumers to evaluate the “risks and benefits” of limited representation. FN178 If consumers are able to evaluate the risks and benefits of limited representation competently, then they can certainly assess the risks and benefits of lay representation. Accordingly, the Colorado legal community should rec-ognize the propriety of providing the consumer with the additional choice of nonlawyer representation.
Rules written to govern nonlawyer practice, like the new unbundling rules, should include adequate safe-guards. For instance, the new Rule 1.2 requires an attorney to explain the risks and benefits of limited representa-tion. FN179 Rules written to govern nonlawyer practice should contain a comparable provision. Other principles embodied within the new limited representation rules could be made applicable to nonlawyers also. *490 Accord-ingly, a lay representative should be required to sign any documents submitted to a court. FN180 Furthermore, a lay representative should provide meaningful legal advice consistent with the nature of the representation. FN181 Finally, because a lawyer providing limited representation under the new rules is still liable for negligent legal ad-vice, the rules should also hold a lay representative liable for negligent advice. FN182 However, the contours of such a liability provision would require careful shaping. For example, should the rules hold lay representatives to the same standards as attorneys, or should their performance be measured only against other nonlawer providers?
Unbundled legal services and lay representation do raise some serious social questions. For instance, some poverty law experts have argued that condoning either limited representation or lay representation can perpetuate a system in which the poor receive second-hand justice. FN183 Admittedly, both limited representation and lay rep-resentation may not provide the quality of legal assistance afforded to a multinational corporation. Although a noble principle, prohibiting limited representation or nonlawyer practice on this ground smacks of blind idealism. First, within the bar, not all lawyers are created equal. Thus, the fees charged by attorneys vary according to expertise and experience. Consequently, one may be able to afford an attorney--but not the best attorney. Second, by denying Colorado's indigent legal assistance because we fear the perpetuation of a dual system of justice, we effectively deny these individuals any legal assistance at all. Accordingly, while limited representation and nonlawyer practice may not provide the poor with the legal assistance afforded to a multimillionaire, it would increase low-income Colorad-ans' access to justice. To deny low-income Coloradans this opportunity, and require them to proceed pro se because the bar cannot allow the perpetuation of a dual system of justice is not only senseless, it is insulting.
The Colorado judiciary's willingness to allow limited representation in its courts suggests that the legal commu-nity is *491 cognizant of its failure to provide Colorado's indigent with adequate legal assistance under the current system. Moreover, the new rules evince the legal community's intent to pursue creative and cutting-edge solutions. Hence, the relatively uncontroversial adoption of the new limited representation rules indicates support within the Colorado legal community for expanding the role nonlawyers play in providing legal assistance to low-income indi-viduals.
A substantial step in the expansion of nonlawyer roles could be achieved by further liberal interpretations of the rules governing the practice of law. Broad interpretation of these rules, such as the construction given to Rule 1.2 in Formal Opinion 101, prevents the erection of artificial barriers to the procurement of legal services. Consequently, the availability of legal services to Colorado's indigent is increased.
As noted by the Colorado Supreme Court's Committee on Pro Se Litigants, “[t] he bottom line is that the ethical standards of the profession should not limit the access of citizens to their courts.” FN184
C. Colorado's Approach to the Unauthorized Practice of Law Indicates Support for Nonlawyer Practice
The proscription of lay practice via the unauthorized practice of law doctrine is the principal legal obstacle to expanding the role of nonlawyers in the delivery of legal services to low-income Coloradans. FN185 Each state has developed its own body of rules concerning the unauthorized practice of law. FN186 In Colorado, a combina-tion of case law, statute, and court rule governs the unauthorized practice of law. FN187 Out of this amalgam of authority, an amorphous and somewhat perplexing set of principles has developed to govern nonlawyer practice.
*492 1. Unauthorized Practice of Law Case Law in Colorado
Pursuant to Article III of the Colorado Constitution, FN188 “[t]he judiciary has inherent and plenary powers with or without legislative enactment, to regulate and control the practice of law to the extent that is reasonably nec-essary to the proper functioning of the judiciary.” FN189 Thus, although a number of statutes purport to govern various aspects of the practice of law, FM190 the Colorado Supreme Court has made clear that such statutes are merely gratuitous and are allowed to exist only because they conform to the authority of the judiciary. FM191 Conversely, “[l] egislation tending to limit the scope of that which constitutes the practice of law would” violate the constitution. FN192
As a result of the above-described relationship between the legislative and judicial branches, judicial pro-nouncements of what constitutes the practice of law are definitive. However, in Denver Bar Ass'n v. Public Utilities Commission, FN193 the Colorado Supreme Court noted the difficulty of providing an all-inclusive definition of the practice of law. FN194 There, the court stated, “[t]here is no wholly satisfactory definition as to what consti-tutes the practice of law.” FM195 Nevertheless, the court did articulate the following functional definition: “[O]ne who acts in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting him in connection with these rights *493 and duties is engaged in the practice of law.” FN196 A further investigation of the case law demarcates the bounds of this definition and reveals the potential to develop a refreshingly straightforward and practical approach to nonlawyer practice in Colorado.
Application of the unauthorized practice of law doctrine should be reserved exclusively for those situations where proscription of an activity is necessary to protect the public from the unscrupulous conduct of ill-willed profi-teers. For instance, in Unauthorized Practice of Law Committee v. Grimes, FN197 the respondent had not been admitted to the bar in Colorado nor was he registered to practice in Colorado. FN198 Nevertheless, Mr. Grimes had represented himself through advertisements in local publications as a “lawyer,” “legal counsel,” and “lay assis-tant.” FM199 Moreover, he “accepted fees and prepared legal motions, notices, and other memoranda for various individuals and also advised members of the public as to what he thought their legal rights and obligations were.” FN200 In doing so, the Colorado Supreme Court determined that the “actions [he took] on behalf of individuals who . . . paid him fees would [have constituted] actionable malpractice if committed by a lawyer.” FN201 The court reasoned: “We do not license attorneys, as the respondent claims, to create a monopoly or to hamper the access of citizens to the courts. The purpose of the bar and our admission requirements is to protect the public from un-qualified individuals who charge fees for providing incompetent legal advice.” FN202 Ultimately, the Colorado Supreme Court held the respondent in contempt of court and sentenced him to six months in jail. FN203
In Unauthorized Practice of Law Committee v. Prog, FN204 the behavior of respondent Mr. Prog was compa-rable to that of Mr. Grimes. One pleading filed by Mr. Prog during the contempt proceedings read in part:
*494 [The disciplinary prosecutor] is a power-hungry female, who thrives on de-facto rules ONLY. She is a persecutor. She is not a District Attorney. She has no power, judicially speaking. She has threatened one, Sy Prog with imprisonment, sanctions of all kinds and wants him to be held in contempt pursuant to her backbone, rules, not Laws of the Land. FN205 Needless to say, Mr. Prog met a fate similar to that of Mr. Grimes. Denver Bar Ass'n v. Public Utilities Commission and Unauthorized Practice of Law Committee v. Employers Unity, Inc. FN206 are representative of cases at the other end of the unauthorized practice of law spectrum. In Public Utilities Commission, the Colorado Supreme Court decided whether a lay person could “practice” before the Colorado Public Utilities Commission. FN207 The Denver and Colorado Bar Associations, along with individual attorneys, challenged the Commission's authority to adopt a rule that allowed lay representation in Commission pro-ceedings. FN208 The bar associations argued that such an adoption would “constitute a usurpation of power vested in the Supreme Court which, alone, has the authority to say who shall and who shall not practice law in this state.” FN209 The Colorado Supreme Court readily agreed that only it has the “exclusive power . . . to determine what is or is not the practice of law and to restrict such practice to persons licensed by this Court to serve as lawyers.” FN210 However, as discussed above, a court will generally leave legislative or administrative pronouncements purporting to govern the practice of law undisturbed if they conform to the court's authority. FN211
Thus, before determining the rule's validity, the Colorado Supreme Court was first required to determine whether lay representation before the Public Utilities Commission constituted the practice of law. The court began its analysis with a policy statement, recognizing that:
*495 More people . . . are directly affected by the processes of administrative boards and quasi-judicial tribunals than by adjudications of the courts. Justice, to the majority of our population, is more apt to mean the fairness of an old age pension or unemployment insurance board than the soundness of a judicial pro-nouncement. FN212 Accordingly, “[w]hether one . . . is practicing law depends upon the circumstances of the particular case there under consideration.” FN213 The court then proceeded to delineate specific circumstances that would and would not constitute the practice of law before administrative bodies. FN214 Finally, in a dashing stroke of ambiguity, the court concluded:
*496 As to matters in which no legal principle is involved and the subject matter of the hearing has a value or represents an amount insufficient to warrant the employment of an attorney, permission is granted . . . to permit laymen to represent others in accordance with Rule 7 (b), even though such representation may constitute practicing law. FN215 Importantly, the court chose not to limit its holding to lay representation before administrative bodies. FN216 Instead, it reasoned that, “[t]he character of the act done, rather than that it is performed before the Commission, is the factor which is decisive of whether it constitutes the practice of law.” FN217 Thus, the logic of Public Utilities Commission, that permissible lay representation depends upon “the circumstances of the particular case” and “the character of the act done,” could be used as a framework to establish the bounds of nonlawyer representation in ad-ministrative and judicial proceedings.
In Employers Unity, Inc., the Colorado Supreme Court shed some light on the seemingly ambiguous reasoning of Public Utilities Commission. The court was called to decide whether lay representation--pursuant to section 8-74-106(1)(e) of the Colorado Revised Statutes--before an administrative body within the Colorado Department of Labor and Benefits, constituted the unauthorized practice of law. FN218 Whereas some debate existed in Public Utilities Commission as to whether the respondents actually practiced law, there was no question as to the respon-dents' actions in Employers Unity, Inc., since their actions paralleled those engaged in by attorneys everyday. FN219 These actions included: making opening statements, conducting direct and cross examination of witnesses, offering and objecting to evidence, and making closing arguments. FN220 Finally, after “trial,” the lay representa-tives may, if warranted, “prepar[e] written arguments to present to the Industrial Commission,*497 which may in-clude reference to the transcript, relevant statutes, and occasionally citing case law.” FN221 Nevertheless, while necessarily admitting that the respondents engaged in the practice of law, the court upheld its authority to do so. FN222
The court's decision rested on a number of factors. First, the report of the hearing master, which the court adopted essentially verbatim, recognized the historical acceptance of lay representation in the field of labor and em-ployment. FN223 Moreover, the master noted that such representation “poses no threat to the People of the State of Colorado.” FN224 Finally, the master found that the amounts at stake in such proceedings “do not warrant the employment of an attorney.” FN225 Therefore, the master concluded that lay representation is a cost-effective means of serving the best interest of the public. FN226 Consequently, the court permitted the respondents to con-tinue representing parties before Referees in the Division of Employment and Training, notwithstanding the clear characterization of their activities as the practice of law. FN227
2. Statutes and Regulations Purporting to Govern the Unauthorized Practice of Law
As discussed in Part III.C.1, the Colorado Supreme Court has the exclusive authority to define the practice of law and determine who may or may not engage therein. Nevertheless, gratuitous statutory provisions and other mul-tifarious pronouncements concerning the unauthorized practice of law can be found in a variety of Colorado authori-ties. A brief discussion of these provisions provides additional insight into Colorado's approach to the unauthorized practice of law.
In addition to the statutory provision at issue in Employers Unity, Inc., a number of other Colorado statutes also appear to allow representation by nonlawyers in certain areas of the *498 law. FN228 For instance, a provision of the Workers' Compensation Act provides that a notice of hearing shall: “Inform the parties that they have a right to be represented by an attorney or other person of their choice at the hearing.” Another statute allows an officer of a closely held corporation to appear on behalf of the corporation in certain worker's compensation pro-ceedings where the amount at issue does not exceed ten thousand dollars. FN230 Finally, in the social services arena, section 26-2-127(1)(a)(IV) of the Colorado Revised Statutes provides that an applicant appealing a denial of benefits may “represent himself or herself or he or she may be represented by legal counsel, or by a relative, friend, or other spokesman, and such representation by nonlawyers shall not be considered to be the practice of law.” FN231
Although presently unchallenged, each statutory provision purporting to allow representation by nonlawyers would presumably be covered by the principles of Public Utilities Commission and Employers Unity, Inc. FN232 Accordingly, under appropriate circumstances, the Colorado Supreme Court would probably approve of nonlawyer representation in workers' compensation and social services cases. Thus, the statutes would likely be construed as “gratuitous” and allowed to stand. FN233
Colorado Rules of Civil Procedure 201 through 260 govern “the admission and regulation of lawyers, as well as prohibitions against the unauthorized practice of law.” FN234 Specifically, Rule 201.3(2) defines the practice of law consistent with “long-standing case authority.” FN235
*499 Rule 5.5 of the Colorado Rules of Professional Conduct also speaks to the unauthorized practice of law. FN236 Rule 5.5 provides in pertinent part: “A lawyer shall not . . . assist a person who is not a member of the Colorado bar in the performance of an activity that constitutes the unauthorized practice of law.” FN237 The comment indicates that the rule is necessary to “protect the public against rendition of legal services by unqualified persons.” FN238 However, the rule does not prevent a lawyer from “providing professional advice and instruction to nonlawyers whose employment requires knowledge of law . . . .” FN239 Thus, the rule leaves the door open for liberal interpretation of the rule--similar to that which occurred in Formal Opinion 101's construction of former Rule 1.2--which would permit cooperation*500 between attorneys and nonlawyers where such cooperation is in the pub-lic interest.
Similar to the message of Rule 5.5, the ethical considerations of Colorado Rules of Professional Responsibility Canon 3 evince an intent to protect the public. FN240 However, unlike Rule 5.5, the ethical considerations leave no “wiggle room” to argue for cooperation between lawyers and lay practitioners, even if such cooperation would be in the public interest. FN241 The pervasive concern of Canon 3 is the absence of any regulatory mechanism to effectively deal with the potential incompetent or unscrupulous representation of lay practitioners. FN242 Thus, Ethical Consideration 3-3 instructs:
A nonlawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of a lawyer. A lawyer is not only subject to that regulation but also is committed to high standards of ethical conduct. The public interest is best served in legal matters by a regulated profession committed to such standards. FN243
Finally, Ethical Considerations 3-1 and 3-4 express the concern that “[a] layman who seeks legal services often is not in a position to judge whether he will receive proper professional attention.” FN244
*501 3. Why Colorado's Approach to the Unauthorized Practice of Law Supports an Expansion in the Role of Nonlawyers.
In essence, Part III.C.1 reveals that the Colorado Supreme Court will allow nonlawyer representation where it is in the best interest of the public. The mandatory pro bono debate divulged the unanimous opinion of the Colorado legal community that increasing the availability of legal services to low-income Coloradans is in the best interest of the public. Nonlawyer representation will increase the availability of legal services to Colorado's indigent. FN245 Thus, the Colorado Supreme Court should allow nonlawyer practice where doing so increases the availability of legal assistance to the low-income community. The principles expressed in Public Utilities Commission and Em-ployers Unity, Inc. support this conclusion.
By not limiting the holding of Public Utilities Commission to administrative representation, the court left open the possibility of allowing lay practice in other contexts. Thus, pursuant to Public Utilities Commission, the permis-sibility of lay representation should depend upon “the circumstances of the particular case” and “the character of the act done,” not simply whether it occurred before an administrative agency. FN246 Employers Unity, Inc. provides additional factors for determining the propriety of lay practice. Under Employers Unity, Inc., nonlawyer representa-tion should be allowed where such representation poses “no threat to the People of the State of Colorado” and the amount at stake in such proceedings “do[es] not warrant the employment of an attorney.” FN247
However, this inquiry should be broadened. Consistent with Employers Unity, Inc., the only relevant considera-tion should be whether lay representation in a given situation is a cost-effective means of serving the best interest of the public. [FN248] Thus, even if the amount at stake does indeed warrant employment of an attorney, lay represen-tation should be allowed where the claimant would otherwise be forced to proceed pro se *502 because obtaining representation by an attorney is cost-prohibitive. Numerous Colorado statutes permitting nonlawyer representation, although gratuitous, further support this contention. [FN249] Moreover, the acquiescence of the Colorado Supreme Court to these statutes, whether explicit or implicit, further supports the assertion that lay practice should be allowed where it benefits the public.
The need to improve public perception of the legal profession was one of the primary reasons the Colorado Su-preme Court Judicial Advisory Council recommended implementing mandatory pro bono. FN250 Commentators have noted that aggressively prosecuting the unauthorized practice of law contributes to the public's negative opin-ion of the bar. The public perceives unauthorized practice of law prosecutions as action taken, not to protect the pub-lic, but to protect the bar's monopoly, especially where the nonlawyer provider has not harmed anyone. FN251 Negative public opinion is only compounded where nonlawyer providers are prosecuted in the face of consumer demand for their services. FN252
In order to encourage nonlawyer representation, ethical rules, which currently discourage nonlawyer representa-tion, should and can be construed to permit it where doing so is in the public interest. FN253 For instance, Colorado Rule of Professional Conduct 5.5 provides that “A lawyer shall not . . . assist a person who is not a mem-ber of the Colorado Bar in the performance of an activity that constitutes the unauthorized practice of law.” FN254 By excluding beneficial lay representation from the definition of the unauthorized practice of law, the rule can be interpreted to allow for cooperation between attorneys and lay representatives where such cooperation is in the public interest. FN255
An expansion of the role nonlawyers play in the delivery of legal services could be achieved either by narrow-ing the definition*503 of the practice of law or by expanding the category of those permitted to engage in the prac-tice of law. The broad definition of the practice of law in Public Utilities Commission, FN256 and the encompass-ing language of Colorado Rule of Civil Procedure 201.3(2), FN257 seem to argue for the latter approach. If lay representation were perceived as the practice of law, the Colorado Supreme Court would have authority over nonlawyer practitioners through existing disciplinary mechanisms. Consequently, this would substantially reduce the cost associated with regulating lay practitioners. This orientation would also provide a basis for requiring lay repre-sentatives to meet certain standards of ethical and professional responsibility. Thus, by securing a means of ensuring high standards of professionalism among lay practitioners, the concerns reflected by the admonitions of Canon 3's Ethical Considerations concerning the potential unscrupulous conduct of nonlawyers, would be eliminated.
Other concerns expressed by Canon 3 have also been alleviated. For instance, the recent rule change allowing the unbundling of legal services indicates the Colorado Supreme Court's recognition that consumers are capable of assessing the risks and benefits of varying degrees of legal representation. FN258 This recognition effectively su-persedes the concerns expressed in Ethical Considerations 3-1 and 3-4 regarding the inability of a layperson to evaluate the quality of nonlawyer representation.
Grimes and Sy Prog make it clear that the state of Colorado must prevent the injurious actions of incompetent individuals through an appropriate corrective mechanism. The Unauthorized Practice of Law doctrine should con-tinue to serve this purpose. However, Public Utilities Commission and Employers Unity, Inc. make it equally clear that the regulatory mechanism, itself, should not operate to the detriment of the public. Accordingly, relevant pro-fessional and ethical rules should be interpreted or modified to allow for lay representation that benefits the public.
*504 The ultimate objective of Colorado's approach to the unauthorized practice of law--be it derived from statute, court rule, or case law--is to allow activities, which further the public interest. Although facially simplistic, this message apparently has eluded the legal community which promulgated it. As a result, the rules governing the unauthorized practice of law result in the “creation of barriers to the procurement of legal advice by those in need.” FN259 Tearing down these barriers and allowing a broader array of lay representation enhances the availability of legal services to Colorado's indigent and is, therefore, in the public interest. Thus, an expansion in nonlawyer prac-tice would be consistent with Colorado's existing authority governing lay representation. Conclusion
The mandatory pro bono debate brought the Colorado legal community to one unavoidable conclusion--it must eliminate barriers which preclude Colorado's low-income residents from obtaining adequate legal assis-tance. Nonlawyer practitioners could potentially play an integral part in achieving this goal. First, however, the Colorado legal community must accept expanding the permissible scope of lay representation as a viable means of increasing both the availability and the affordability of legal assistance to Colorado's indigent. Many of the ration-ales offered in opposition to mandatory pro bono do not similarly support a rejection of nonlawyer practice. Others actually support expanding the role of nonlawyers. Moreover, expanding lay practice in Colorado is a natural exten-sion of the Colorado Supreme Court's willingness to allow unbundled legal services. In fact, the newly enacted un-bundling rules could serve as the basic framework on which to build an acceptable regulatory mechanism. Finally, the Colorado Supreme Court's approach to the unauthorized practice of law acknowledges circumstances where lay representation is indeed in the best interest of the public. Consequently, the Colorado legal community should re-dress its failure to meet the legal needs of Colorado's low-income individuals by integrating lay practitioners into the community of legal providers.
*505 Expanded lay representation is not a perfect solution. This option would enable many low-income Colo-radans to access previously unaffordable legal assistance. However, such legal assistance is not free. Thus, some of our poorest residents may continue to lack adequate access to legal services. Moreover, there are valid concerns about a system that does not provide poor people with the same degree of legal assistance as affluent people. Finally, whether nonlawyer practice will help alleviate low-income Coloradans' inadequate access to the courts depends largely on choosing an appropriate regulatory regime.
Unfortunately, there remain many details to address. For instance, would lay practitioners be required to carry malpractice insurance? To what degree, if any, should a communication between the lay practitioner and client be protected by the attorney-client privilege? Many questions must be answered before lay practitioners can be suc-cessfully integrated into the delivery system. One answer is already clear, though. Regulation of lay practitioners, not proscription, best serves the public interest.
It was not the intent of this comment to answer all of these questions. Instead, its purpose was to stimulate a comprehensive debate concerning nonlawyer practice in Colorado. If the legal profession is truly committed to civic responsibility, then it must consider this matter for the sake of Colorado's low-income residents.
Although expanding the scope of nonlawyer practice is admittedly an imperfect solution, it is a necessary step toward achieving the ultimate goal of equal justice for rich and poor alike. However, for now, whether or not the legal community should allow lay representation comes down to one simple point: Some competent legal assistance is better than none. FN260 As evidenced by the new unbundling rules, the Colorado Supreme Court seems to agree. Thus, Colorado should accept nonlawyer practice as a viable means of increasing the availability of legal ser-vices to low-income Coloradans.