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I, Donald F. Steward, submit this public comment in opposition to the proposed amendments to ACJA Section 7-208. I am informed that the proposed amendments are based upon recommendations set forth in the October 4, 2019 “Task Force on the Delivery of Legal Services Report and Recommendations (hereinafter “the report”)". With all due respect, the relevant portion of the report reflects a misinterpretation and mischaracterization of LDP authorized services and the best practices manner in which certain services are provided to consumers. The report further shows a lack of understanding or a discounting of the role a self-represented consumer plays in receiving LDP services and providing direction to the LDP.
Said proposed amendments would prohibit an LDP from preparing substantive legal motions, supporting memorandum, appellant briefs, and from preparing a legal document which applies legal research to the facts of a case. The report’s stated rational for the proposed amendments are that there is a purported “confusion” in the LDP community about the scope of documents LDPs can complete. The apparent underlying rational is that such services were not ever contemplated to be authorized under ACJA Section 7-208, nor can they be provided in compliance with the provisions set forth in ACJA Section 7-208. These presumptions or assertions, as the case may be, are false. The proposed amendments are wholly unwarranted and would substantially reduce the scope and quality of low-cost legal services available to the general public effectively baring thousands of low-income consumers each year from access to justice and their legal needs in general. In addition, the restrictions and prohibitions set forth in the proposed amendments, if enacted, would force many hard-working certified legal document preparers out of business who will no longer be able to offer the services they have built their businesses around.
My opposition is further based upon the following facts and grounds.
MY KNOWLEDGE OF THE ISSUES: In 2002, I served on the Arizona Supreme Court Ad hoc committee which drafted ACJA 7-208. I was intimately involved in constructing the language of the code, including 7-208 (F), which details the “Authorized Services” a certified legal document preparer may offer the general public. Thereafter, I was honored to serve on the first Board of Legal Document Preparers from 2003 to 2006, where we further developed the program, its policies, and procedures. I have also been a Certified Legal Document Preparer since the inception of the program and have served for many years as an officer of the Arizona Association of Independent Paralegals, the state’s largest professional association for LDPs.
AN LDP’S CURRENT AUTHORITY: Simply stated, LDPs are authorized to engage in a limited authority to practice law as it relates to the preparation of legal documents for and on behalf of a consumer for any legal purpose. The ACJA § 7-208(F)(1), titled “Authorized Services”, states that “A certified legal document preparer is authorized to: (1) Prepare or provide legal documents, without the supervision of an attorney, for an entity or member of the public in any legal matter when that entity or person is not represented by an attorney.” The LDP code of conduct, which describes LDP conduct in providing such services, also provides insight and clarification as to the scope of LDP services and intent of the program. For instance, the LDP code requires in part an LDP “shall respect and comply with the laws” (ACJA § 7-208(J)(1)(a)), “keep abreast of current developments in the law as they relate to legal document preparation, ACJA § 7-208(J)(2)(d), “provide complete documents to a consumer” and “meet document preparation deadlines in accordance with rules, statutes, court orders, or agreement with the parties” ACJA § 7-208(J)(4)(a). The LDP Code further requires LDPs “perform all duties and discharge all obligations in accordance with applicable laws, rules, or court orders” ACJA § 7-208(J)(5)(a), and that LDPs only accept assignments which “will result in an accurate document” ACJA § 7-208(J)(4)(b).
AN LDP’S ABILITY TO PREPARE SUBSTANTIVE LEGAL MOTIONS, SUPPORTING MEMORANDUM AND APPELLATE BRIEFS WAS THOROUGHLY VETED BY THE DRAFTING COMMITTEE AND MULTIPLE COURT COMMITTEES
ACJA § 7-208 is the result of the hard work of the original ad hoc committee and numerous other committees that reviewed and approved § 7-208. The ad hoc committee consisted of numerous members of the Arizona State Bar, including the President of the Bar at the time, numerous attorneys with the Arizona Supreme Court, private attorneys, and several “independent paralegals”, including myself, whom would later be some of the first certificate holders. The ad hoc\ drafting committee, specifically contemplated, analyzed, and discussed the ability of document preparers to prepare motions, memorandums and appellate briefs, including whether such services could be offered in a manner consistent with the rules which would become § 7-208. After carefully considering these and other relevant issues, the ad hoc committee voted UNANIMOUSLY to approve these provisions. Prior to the vote, the State Bar Board of Governors UNANIMOUSLY voted to authorize its members who were representing the Bar on the ad hoc committee to vote in favor of approval. In addition, the provisions of § 7-208 referred to above went through a rigorous scrutiny and approval process with several committees, including the Committee on Limited Jurisdiction Courts, the Committee on the Superior Court, and The Arizona Judicial Council, all of which UNANIMOUSLY approved these provisions. It should be noted that among other considerations, each of these committees specifically contemplated, analyzed, and discussed the ability of document preparers to prepare motions, memorandums and appellate briefs, including whether such services could be offered in a manner consistent within the court rules. Finally, the Arizona Supreme Court Justices reviewed and approved UNANIMOUSLY, the same provisions referred to above, as they are currently written.
Again, despite the extensive and thorough vetting of this issue, eighteen years later, these proposed changes are being offered without any discussion or sufficient analysis regarding the grounds or basis which may justify the changes. There is in fact no justification or reasons in the interest of the LDP program or the public to approve the proposed changes, rather, if approved they will have a significantly negative impact on the public and the LDP program.
THE TASK FORCE ON THE DELIVERY OF LEGAL SERVICES LACKED SUFFICIENT INFORMATION TO ACT ON
To be clear, I appreciate and largely support the hard work of the Task Force. However, for unknown reasons, as to the issues at hand, the report commentary reflects a significant lack of information and misunderstanding of the manner in which LDPs provide services to consumers and the role of the consumer in accepting LDP services and providing instruction and direction to an LDP. I believe it shocking that not one LDP was appointed to the Task Force that contemplated in part such dramatic changes to the LDP program. I personally attended many of the Task force meetings, as did several other LDPs. While I appreciated that a few LDPs, including myself, were periodically allowed and even invited to make comments during meetings, that is vastly different than being a participating member of the committee. Moreover, LDP commentary I witnessed during various task force meetings is not reflected at all in the relevant portions of the report. On the contrary, the information in the relevant portion of the report in large contradicts information provided by LDPs. It is also my impression that most members of the Task Force were completely unfamiliar with the LDP program, nor did they have any information about the scope and volume of services LDPs provide the public and therefore could not assess the impact making significant changes to the program may have on the public.
The report references there is “some confusion as to the scope of documents LDPs can complete”. There is no indication as to where that opinion or presumption arises from. I acknowledge the various statements in the report that “LDP’s cannot give legal advice”, but I deny the presumption that substantive legal motions and supporting memorandums cannot be prepared for consumers under the current previsions of 7-208. As stated above, while the original ad hoc committee and the various other committees that approved 7-208 discussed and thoroughly analyzed this issue, apparently there has been a loss of understanding over the years. My impression is that a critical factor that is not considered in the Task Force’s analysis of this matter is the role, responsibility, and ability of the self-represented consumer. The interactions and general collaboration between an LDP and a consumer substantially differs from an attorney client relationship. An LDP can prepare and provide the consumer with various templates, general legal information, options, and strategies, which along with the consumer’s existing resources, knowledge and skills, enables the consumer to provide specific direction in preparing any legal document, including those types of documents which are the subject of the proposed changes to 7-208. The Task Force Report promotes conflicting messages, on one hand rightfully stating LDP services should conform to the consumers instructions and decisions, and then in contrast implying that the consumer is a passive recipient of LDP services. To illustrate this point, the Task force report makes statements which presumes a legal document which contains an application of research to the facts of a consumer’s case would not be drafted at the specific direction of the consumer. What evidence is there to support that presumption? Again, the report shows a lack of understanding about how LDP services are provided to consumers. At a minimum Certification and licensing should have a full understanding about how services are provided before taking action to make changes.
APPROVAL OF THE PROPOSED CHANGES WILL IMPACT THOUSANDS OF SELF-REPRESENTED LITIGANTS EACH YEAR. Prohibiting the preparation of substantive motions, memorandum, and appellate briefs will deprive self-represented litigants from access to justice. While I am not aware of any formal surveys assessing the volume of such work document preparers regularly performed for the general public, I offer the following perspective on the negative impact of prohibiting such work. For twenty-five years, I owned and operated an LDP business, which annually served 800 to 1200 customers in a broad scope of legal matters, including civil, family, probate, business, and estate planning related matters. I estimate assisting 150 to 200 customers per year with various motions, mostly in civil or family court matters. Thus, since the inception of the program, I have prepared close to 3000 motions for consumers. Moreover, I am aware of numerous LDP businesses who do a substantially larger volume of such work for consumers on an annual basis. I estimate LDPs have done tens of thousands of substantive legal motions for consumers since the inception of the LDP program. Such services are in clear demand by the public and eliminating them for no reason does nothing but sever a consumer’s access to justice. In view of the above, I urge the court to reject the proposed changes to § 7-208.
APPROVAL OF THE PROPOSED CHANGES WILL FINANCIALLY IMPACT A LARGE SEGMENT OF THE LDP COMMUNITY
The court should also consider the devastating impact the proposed amendments will have on many, LDPs who have a significant portion of their revenue come from preparing motions, memorandum, and appellate briefs. LDP often operate on a shoestring budget and eliminating these services may cause many LDPs to go out of business, or have to raise prices on other services, all of which ultimately negatively impacts the consumer.
PROPOSED CHANGES REQUIRING “PROFESSIONALISM TRAINING COURSE” IS WITHOUT BASIS AND UNECESSARILY BURDENSOME
To be clear, this certificate holder has no issue with division staff providing the option of a training course on the role and responsibilities of the certified legal document preparer. However, requiring an LDP to do so seems to be entirely unnecessary and burdensome to the certificate holder who has just been determined by the program to be fully qualified for certification and having passed the required examination. It seems to be an upside-down approach to provide training on a subject after the certificate holder has been determined to be sufficiently knowledgeable, actually an expert, on the role and responsibilities of being a certified legal document preparer. It is particularly unnecessary for LDPs who have been practicing for many years, some of which for almost two decades. In addition, there are numerous opportunities for LDPs to take seminars, webinars, and resources for self-study on the subject and related ethics issues, which are available to the LDP community by instructors who are experienced LDPs as well as by attorneys. While in this certificate holder’s opinion the course is not needed, at least it should not be required. Again, the course is being proposed with no information offered as to need or potential benefits to the LDP community or the public.
Respectfully submitted this 14th day of January 2021
Donald F. Steward, AZCLDP #80339
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