Elizabeth Sandoval Cantu, chair of the administration committee, went through the suggested changes in a red-lined version of the proposed rules put out last month by the court that would allow non-attorney paraprofessionals and court access assistants to perform some services in the areas of family law, estate planning and probate law, and consumer debt law for Texas residents who typically cannot afford a lawyer for basic legal needs.
Paraprofessionals would be able to perform some legal services unsupervised, while court access assistants would be supervised by a sponsoring agency, such as a legal aid organization or law school clinic, according to the rules.
The proposed comments passed after Cantu's review and some discussion from the directors, several of whom expressed concern regarding legal work performed by non-attorneys when a non-citizen party is involved. A proposed amendment to the comments made by director Chris Wrampelmeier at Friday's meeting failed; it would have suggested excluding non-attorneys from working on any matters involving a non-citizen.
Ahead of the vote, Texas Supreme Court Justice Brett Busby pointed out that such a rule might run afoul of federal law that prohibits discrimination based on immigration status, and the bar's president, Steve Benesh, asked if the change would mean that a poor Texan seeking to divorce a non-citizen would be excluded from seeking help from a non-lawyer.
Wrampelmeier, who was making the motion for his "friends in immigration," conceded that such a recommendation might require "a little more consideration."
Wrampelmeirer's other motion did pass, which added language clarifying that attorney supervision is required in family law matters where there is a division of retirement funds, even if such a division isn't called a "qualified domestic relations order," as may be the case with funds held by members of the military, for example.
Other changes suggested in the bar's redlined version of the court's proposed rules aligned procedures for discipline and licensing with those already in place for Texas lawyers rather than placing that authority with state bar administrators. Some suggestions amounted only to minor clarifications in the language.
Here we take a look at some of the recommendations from the bar being sent to the court as comments.
Eligibility
While the Texas Supreme Court's proposed rules require only a high school diploma as a basic requirement for paraprofessional licensure, the state bar is suggesting the court require a minimum of an associate's degree. The bar is asking the court to prohibit attorneys who have been disbarred in any state from acquiring paraprofessional licensure.
The bar is also suggesting that the court set a minimum age of 18 for court access assistants.
Cantu said those changes are needed to "better protect the public."
The court's current proposal states that applications for licensure would be made to the state bar, but the bar has suggested that those be made "as directed by the state bar" in "recognition of the long history" of the Texas Board of Law Examiners handling applications for attorneys.
Cantu noted that having the TBLE handle applications "makes the most sense."
Continuing education
The bar has suggested increasing the number of annual CLE hours required for paraprofessionals from ten — as currently required in the court's proposed rules — to 15. The bar is asking that seven of the required hours be in each subject matter in which the paraprofessional is licensed, and that at least three hours be accredited in ethics.
Court access assistants are required to complete three hours of CLE per year in the court's proposed rules, and the bar does not recommend changing that. However, it has suggested some minor changes to the language to include that the education be accredited by the bar.
Duties to clients and fees
The bar is suggesting that language be added to ensure that non-attorneys fully explain client rights and inform clients how the professional relationship can be terminated.
Also recommended is that paraprofessionals hold payments and fees in trust until they "confer a benefit" to the client or perform a legal service, and that a client must be promptly notified upon receipt of any funds or property.
The bar is asking the court to add language that would prohibit fee arrangements for paraprofessionals that involve charging a "percentage fee, contingent fee, referral fee, origination fee, or for a fee that is illegal or unconscionable."
Cantu said the change was deemed necessary because lawyers already represent clients through contingency arrangements, and there is no justice gap under those circumstances and that "having paraprofessionals involved in referral fees could cause unforeseen harm."
Ethics and discipline
The bar's comments suggest adding language requiring paraprofessionals to "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information as required by lawyers" under the state's disciplinary rules.
The bar further recommends that language be added that requires non-attorneys to abide by many of the professional conduct rules that govern Texas lawyers.
The court's proposed rules give the bar authority to revoke or suspend a non-attorney's license. The bar is seeking to expand that authority to include imposing conditions on a paraprofessional's license as it might do, for example, in the case of a lawyer struggling to overcome a substance use disorder, Cantu said.
The bar is also asking that the court's rules identify the Office of Chief Disciplinary Counsel as the appropriate place to appeal a suspension, revocation or conditional license, rather than the bar's executive director as it currently states in the court's proposed rules.
Court access assistant disclosures
The bar suggests that the court's proposed rules for court access assistants be amended to include a requirement that clients be informed in writing that the assistant is being supervised by a licensed attorney, and that the disclosure include the name of the supervising lawyer.
Cantu said that the hope is to "ensure supervision" of the legal work of court access assistants.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
