Rules of Evidence – Comment Period Closed July 22, 2021

First, the proposed addition to subsection (a)(2) should not include the word “shall.” It adds no value to the meaning of the sentence, and it perpetuates an anachronistic use of the inherently ambiguous word.

Second, in the same subsection, I find it curious that the authorization to provide legal services comes from the “State of Utah” rather than the Bar and/or the Utah Supreme Court. The proposed phrase makes it sound as if a legislative or administrative body (e.g., DOPL) is the authorizing entity.

To the detriment of everyone involved, this proposal inadvisably expands the scope of attorney-client privilege to include individuals who are not attorneys. Every attorney licensed in this state should vehemently oppose this expansion.

This proposal stretches the definition of “lawyer” to include people who are not lawyers: “For purposes of this Rule, “lawyer” shall also mean a licensed paralegal practitioner, a lawyer referral service, or any other person or entity authorized by the State of Utah to provide legal services.”

The proposed rule offers no tailoring of this sacred privilege to suit licensed paralegal practitioners (“LPPs”). Rather, it fundamentally changes the definition of lawyer to shoe-horn LPPs and their “regulatory sandbox” further into the practice of law. As the late Justice Scalia said, “this wolf comes as a wolf.”

I hope the irony is not lost that the field of law, dedicated to scrupulous examination of the intent of words, their essential meaning, and their consistency in application, has jumped on the band-wagon of shape-shifting terminology. To be clear, this proposal will not be remedied by new language in the rule differentiating between lawyers and LPPs. The resulting confusion between attorneys and paralegals presents risk to the most vulnerable of our society. LPPs are rightfully limited in their scope of representation under Rule 14-802 because they are not practicing attorneys. The scope of LPP practice is largely limited to advising a client in the determination and completion of relevant forms.

Only licensed, active members of the Utah Bar may counsel and advise a client by applying the law and associated legal principles to the facts and circumstances of that specific client. Candid and forthright privileged communication between the attorney and client is essential to foster this advocacy. An attorney has significant legal training to know when she or he must disclose the contents of the communication under Rule 504, and the implications other rules of ethics. Most importantly, confidential communications foster a belief in the client that the attorney is advising the client in a multitude of ways, encompassing multiple legal issues. Why else would the communications have such privilege? As LPPs are not permitted to counsel and advise a client in this manner, they have no need for the privilege afforded to clients represented by attorneys.

The LPP regulatory sandbox program was created to increase access to justice through offering a lower-cost alternative to attorneys. But many times in life, the cheapest way to pay is with money. What this program has failed to grapple with is the reality of how the law works: people and businesses with money will always hire attorneys. It is the most vulnerable in our population who seek out the low-cost alternative. Society’s vulnerable need to remain mindful of the limitations of an LPP; this proposal sowes confusion. We’ve already blurred the lines enough. Further encouraging naïve consumers to confide in an LPP because of “attorney-client” privilege doesn’t just blur the line—it erases it completely. Facilitating meaningful access to justice deserves a broader legislative initiative, rather than a band-aid.

If lawyers–by which I mean actual lawyers educated specifically in the area of law through a juris doctor degree and subsequently licensed to practice law after passing a character and fitness determination and a bar exam–are superfluous to the practice of law, perhaps it is time to open the floodgates. In an age of Instagram “divorce coaches” replacing experienced family law attorneys, I can’t say I’m surprised that the next step involves a definition that a lawyer is not necessarily a lawyer.

I dissent.