By Eliza Hong
The legal profession has long operated under what is often called the “lawyer’s monopoly” — the rule that only licensed attorneys may provide legal advice or represent others in court. This structure is justified as consumer protection, premised on the idea that trained lawyers are necessary to ensure fairness and accuracy.
But that justification depends on a critical assumption: that lawyers are actually available to the people who need them. In fact, 92% of low-income Americans (a population spanning around 50 million people) do not have enough legal assistance for civil legal needs, including to protect basic needs or human rights.
In Judges and the Deregulation of the Lawyer’s Monopoly, 91 Fordham L. Rev. 2757 (2023), Jessica K. Steinberg, a law professor at George Washington University Law School, and her colleagues examine and report on implications of new roles undertaken by social services providers inside state trial courts — particularly in domestic violence protective order proceedings.
The Key Finding
Observing that, in fact, few people have lawyers, Prof. Steinberg finds that many judges are not merely observing the access-to-justice crisis; they are actively responding to it. They are enlisting nonlawyer social services providers, who are often present in the courtrooms adjudicating debt collection, eviction and family matters (about 90% of civil court dockets), to help people with their legal proceedings.
It’s a very surprising finding since the law prohibits nonlawyers from practicing law, yet here the judges seem to be not only tolerating advocacy carried out by nonlawyers, but actively relying on it. Seen this way, the judges, as a practical matter, are promoting fairness by endorsing a form of deregulation of the practice of law.
Larger Implications
Many litigants — especially in high-volume courts — appear without counsel. Lawyers are expensive, legal aid is underfunded and demand far exceeds supply. In addition, many people do not even identify their problems as “legal,” meaning they never seek lawyers at all.
What the article uncovers is a practical angle on solving the problem. Judges are not waiting for systemic reform — they are already adapting by depending on nonlawyers to make the system function.
For example, the article explains that in domestic violence courts, judges routinely turn to nonlawyer advocates — often employed by shelters or nonprofit organizations — to support litigants. These advocates often:
- Draft petitions
- Discern legal issues
- Develop evidence
- Prepare litigants for hearings
- Explain legal standards and court procedures, including those related to protective orders
These are not trivial roles. As one judge said, advocates “do everything except stand up and speak for them.” Another judge said that without advocates, “the system would not function.” Litigants shared their similar perspectives: one explained that without advocate assistance, they “would not have been able to get through the process.”
Crucially, this work by nonlawyers does not merely supplement the courtroom — it shapes it. Professor Steinberg said that what appears to be judicial fact-finding is often based on pleadings and narratives carefully developed by advocates beforehand and behind the scenes. Judges, in turn, rely on these structured presentations to guide their questioning when in the courtroom. Nonlawyers are already performing essential, lawyer-like functions, and judges are implicitly authorizing that work out of necessity.
The traditional prohibition on nonlawyer practice remains formally intact, but in practice it is being selectively relaxed to keep courts operational.
Why Reliance on Nonlawyers Seems to Work
While it is common to presume — and while the law explicitly requires in most settings — that all legal matters be handled exclusively by lawyers, there are reasons why it’s not entirely surprising that nonlawyer advocates are handling certain legal matters in the presence of judges. After all, many advocates work exclusively within a single area (such as domestic violence, eviction, or family court) and develop a deep familiarity with the court procedures, the typical fact patterns and the judges’ expectations. By contrast, a licensed attorney (even a highly competent one) who lacks experience in that specific area may lack procedural knowledge of those courts. In that sense, competence in practice is domain-specific, not license-dependent. This reality means that nonlawyer advocates are not only often the only option, they are a better option than most licensed lawyers who are not as familiar with the process in that area of civil litigation.
Three Opportunities for Practitioners and Reformers to Increase Access to Justice:
Building on this empirical reality, the article identifies three major implications — each of which also presents an opportunity to increase access to justice.
1. Consider Formal Judicial Acknowledgment of the Role of Nonlawyer Advocates
Despite their importance, nonlawyer advocates remain largely invisible within the formal structure of the court. They typically meet litigants in hallways or private rooms, preparing the litigants outside the public eye. Their role is not formally acknowledged in proceedings or codified in local rules.
The article suggests that this invisibility is driven in part by norms of judicial neutrality. Judges grew uncomfortable over time from openly acknowledging reliance on nonlawyers, even when such reliance became essential. Judges may be reluctant to invite scrutiny of a practice that is not explicitly permitted in the judiciary. Judges should be able to speak candidly about the realities of “lawyerless” courts, and neutrality should be redefined to account for the structured role nonlawyers already play. What would it look like if the practice was fully acknowledged? It might simply make it easier and more effective for people to get the help they need.
2. Consider Using this Existing Practice to Develop Norms and Professional Roles
The second issue is that the system is failing to formalize what is already working.
Trial courts are already experimenting with this form of practical deregulation. As the article explains, judges are working with nonlawyers in ways that improve efficiency and access. Yet these practices remain informal and inconsistent. At the same time, more formal efforts at deregulation, like court navigator programs, limited license legal technicians, regulatory sandboxes and nonlawyer ownership models, have faced debate and resistance.
This tension is striking. Judges who have long relied on nonlawyer advocates possess valuable, experience-based insight into how these roles can function effectively. Yet their practices remain informal and underdeveloped.
Courts have already identified a workable model here: trained advocates providing structured assistance under judicial oversight. This missed opportunity is a failure to translate this informal system into clear standards, training and accountability mechanisms. Instead of resisting change, the profession could build on what is already working to create a new class of regulated, recognized legal service providers.
3. Consider Providing Assistance to Defendants Who Presently Receive No Assistance at All
Finally, the article highlights a serious due process concern: nonlawyer assistance is not distributed evenly between parties.
In domestic violence proceedings, petitioners often benefit from extensive social services support (including, as the article explains, with their petitions), while defendants typically receive no comparable assistance from either lawyers or social services providers. This creates what the article describes as a “massive due process rift” with significant consequences, as protective orders can result in loss of physical liberty, removal from one’s home and loss of custody of children. Despite these high stakes, defendants are often on their own.
This imbalance receives little attention because the role of advocates on behalf of the petitioners remains largely hidden. It would seem to most observers that neither side is receiving assistance. Making nonlawyer assistance visible would expose the disparity and highlight the need for reforms that ensure both sides have meaningful support.
Notably, the article points out that after the study period concluded, at least one site introduced a defendants’ advice clinic to address this inequity — demonstrating that targeted interventions are both possible and effective.
The Way Forward
Professor Steinberg and her colleagues help us see how courts are adapting to the realities of the access-to-justice crisis. Facing overwhelming numbers of litigants without counsel, the judges observed in the study are relying on nonlawyer advocates as a practical necessity, allowing them to shape proceedings and to help the litigants secure protective orders.
Until recently this practice was invisible, and it would have been considered outside the law. But as it emerges into public view, the practice can be seen for the value it offers: nonlawyers are doing lawyer-like work in the service of justice under judicial supervision with demonstrable benefits.
The challenge now is to recognize and build upon this reality. By revealing the contributions of nonlawyers, pressing for new norms for nonlawyer advocacy and providing assistance to defendants who presently receive no assistance at all, reformers can bring this form of shadowed advocacy into the light, scaling it up to bring a deliberate, structured approach to expanding access to justice for all.
Eliza Hong is a member of the Emerging Leaders Council of the Legal Services Corporation. They graduated from Cornell Law School in 2024 and created the AI/chatbot project of the Tenants Advocacy Program. They currently practice transactional law, particularly in mergers and acquisitions, as an associate attorney at Meltzer, Lippe, Goldstein & Breitstone, LLP.
Good Advocacy in the Shadows was originally published in Justice Rising on Medium, where people are continuing the conversation by highlighting and responding to this story.