Montana Supreme Court Authorizes Community Justice Workers to Provide Limited Legal Services in Justice and City Courts

Introduction

In administrative docket AF 11-0765, the Supreme Court of Montana considered a petition by the Montana Legal Services Association (MLSA) to authorize “certified lay advocates,” referred to as Community Justice Workers (CJWs), to deliver limited legal services in Montana’s courts of limited jurisdiction—Justice Courts and City Courts. The petition, supported by the Montana Supreme Court Access to Justice Commission and the State Bar of Montana, responds to well-documented justice gaps in rural and low-income communities, with acute shortages in assistance for survivors seeking Orders of Protection (OPs).

The petition details a structured training, certification, and supervision framework under MLSA’s stewardship, initially focused on representation in Order of Protection proceedings and, in later phases, on simple housing and consumer matters. The requested relief centers on amending Rule 14 of the Montana Uniform Rules for the Justice and City Courts to allow qualified CJWs to provide defined services—document preparation, legal advice, and courtroom representation—within those limited subject areas, and to establish a complementary administrative structure (definitions, eligibility, application, approval, scope of services, and reporting).

The principal issues raised include: (1) the scope of the Montana Supreme Court’s constitutional authority to regulate the practice of law and make court rules; (2) the contours of Montana’s unauthorized practice of law (UPL) prohibitions, particularly as they pertain to courts of limited jurisdiction; and (3) the design of ethical and procedural guardrails necessary to protect the public while expanding access to justice.

Summary of the Opinion

The Court’s administrative action, as reflected in the petition’s framing and requested rule text, establishes a targeted regulatory pathway for non-lawyer Community Justice Workers, trained and certified through MLSA, to render limited legal services in Justice Courts and City Courts. The core components include:

Modification of Rule 14 (Representation) of the Montana Uniform Rules for the Justice and City Courts to recognize CJWs as authorized representatives, alongside self-represented parties and licensed attorneys, for specified matters.
Initial authorization confined to Order of Protection proceedings, with the possibility of later expansion to simple housing and consumer matters following curriculum development and certification protocols.
Requirements that CJWs:
- Complete defined training, pass a certification examination, and participate in interactive courtroom simulations.
- Operate within a supervision and mentoring structure led by an MLSA “CJW Project Attorney.”
- Obtain a client’s informed written consent acknowledging the CJW is not a lawyer.
- Abide by confidentiality, conflict-of-interest, and other professional-standards guardrails modeled on the Montana Rules of Professional Conduct (MRPC).
Creation of an application and approval process administered by (or through) the State Bar of Montana, and ongoing reporting obligations to the Court and the Bar.
Clarification that participation by CJWs and supervising attorneys in the program does not constitute unauthorized practice of law or assistance thereto, addressing MRPC 5.5(b) risks.

Collectively, these measures carve out a narrow, supervised exception to the UPL regime in courts of limited jurisdiction, expressly calibrated to meet urgent access-to-justice needs among survivors of domestic and sexual violence in rural and tribal communities.

Detailed Analysis

Precedents and Authorities Cited

The petition situates the requested rulemaking within Montana’s constitutional, statutory, and case-law framework:

Constitutional and Rulemaking Authority: Article VII, Section 2(3) of the Montana Constitution vests the Supreme Court with authority to “make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members.” The Court has repeatedly recognized and exercised this power in matters of professional regulation and court administration (Harlen v. Helena, 208 Mont. 45, 676 P.2d 191 (1994); In re the Rules of Professional Conduct, 2000 MT 110).
Unauthorized Practice of Law Statutes: Mont. Code Ann. § 37-61-201 defines who is considered to be practicing law, including appearing in court or performing acts usually undertaken by attorneys. Mont. Code Ann. § 37-61-210 makes unlicensed practice “in any court, except a justice’s court or a city court,” a contempt of court, underscoring a longstanding statutory distinction for courts of limited jurisdiction.
Montana Supreme Court Commission on the Unauthorized Practice of Law v. O’Neil, 2006 MT 284, ¶ 80, 334 Mont. 311, 147 P.3d 200: The Court observed that UPL restrictions are “narrowly tailored” to target provision of legal services by individuals who have not demonstrated qualification through bar admission. The CJW program is designed to address those concerns through rigorous training, supervision, and programmatic oversight.
Restatement (Third) of the Law Governing Lawyers § 4, comment c: Identifies consumer-protection justifications for UPL regimes—privilege, confidentiality, conflict safeguards, and trust-account regulation—concerns that the CJW framework directly addresses via MRPC-based obligations, informed consent, and supervisory structures.
Student Practice Rule and Shapiro v. Jefferson County, 278 Mont. 109, 923 P.2d 543 (1996): Montana’s Student Practice Rule is a prominent example of the Court authorizing nonlawyers (legal interns) to perform legal services under specific qualifications and supervision. The CJW program is analogous: it creates a structured channel for nonlawyer assistance under defined guardrails.
Steele v. McGregor, 1998 MT 85, 288 Mont. 238, 956 P.2d 1364: Illustrates how attorneys risk violating MRPC 5.5(b) if they “assist” in the unauthorized practice of law. By authorizing CJWs and directing how lawyers may supervise them, the Court provides clarity and protection for participating attorneys and CJWs.
Sparks v. Johnson, 252 Mont. 39, 826 P.2d 928 (1992) and Mont. Code Ann. § 25-31-601: Provide a pre-existing, limited exception in justice courts allowing a “one-time” friend-or-relative lay representative, later extended to city courts. The CJW program expands beyond one-time appearances, but remains confined to specific subject matters and courts of limited jurisdiction.

Legal Reasoning and Structure

The Court’s approach, as reflected in the petition’s proposed orders and justifications, harmonizes two imperatives: safeguarding the public from unqualified representation and responding to an acute, empirically demonstrated access-to-justice shortfall in Montana, particularly in rural and tribal communities.

Scope Limitation by Forum and Subject: CJWs are authorized only in Justice Courts and City Courts (courts of limited jurisdiction), and only for defined subject-matter categories, beginning with Orders of Protection. This mirrors the statutory structure in § 37-61-210 and respects the comparative informality and high-volume, essential civil protective work of these tribunals.
Gatekeeping and Oversight: The program centralizes training, mentorship, and ongoing evaluation through MLSA’s CJW Project Attorney, with applications approved by the State Bar. This creates layered accountability: pre-admission vetting, ongoing supervision, and a grievance channel for clients.
Ethical Safeguards: CJWs must:
- Disclose nonlawyer status and obtain informed written consent from clients.
- Adhere to core MRPC norms, including confidentiality and conflicts rules.
- Operate under protocols that identify matters beyond their scope for referral to an MLSA attorney.
These measures address the Restatement’s consumer-protection concerns while enabling practical service delivery.
Protection for Lawyers: By clarifying CJWs’ authorized role, participating attorneys avoid MRPC 5.5 exposure, a risk underscored by Steele v. McGregor. The program delineates permissible supervision and collaborative practice with nonlawyers under Court authority.
Data-Driven Necessity: The record includes extensive data on attorney scarcity in rural counties, the prevalence of domestic violence and associated risks, and demand outstripping MLSA’s capacity. This empirical predicate supports a narrow regulatory innovation tailored to the highest-need dockets.
Continuity with Prior Exceptions: The CJW design builds on Montana’s experience with the Student Practice Rule and tribal lay advocacy (through MLSA’s Tribal Advocacy Incubator Project), thus not a radical departure but an incremental, problem-focused extension of established supervised nonlawyer practice models.

Textual Change: Rule 14

The petition requests an amendment to Rule 14 of the Montana Uniform Rules for the Justice and City Courts to add nonlawyer Community Justice Workers to the roster of permissible representatives, alongside self-represented parties and licensed attorneys. The proposed text:

“A party may represent oneself, or be represented by counsel or by a non-lawyer Community Justice Worker … [who is] authorized to provide limited legal assistance to clients in specified areas of law, under the jurisdiction of the Montana Supreme Court and the State Bar of Montana.”

This language is cabined by the program’s subject-matter limits, certification requirements, and supervisory infrastructure.

Program Architecture and Guardrails

Training and Certification: Interactive simulations and a certification examination ensure baseline competence. The curriculum is tailored to OP proceedings (and later to simple housing and consumer matters).
Supervision and Mentorship: An MLSA CJW Project Attorney shadows, mentors, and evaluates CJWs, providing legal guidance and stepping in for complex matters.
Ethical Framework:
- Informed consent (in writing) confirming the CJW is not a lawyer.
- Confidentiality and conflicts controls modeled on the MRPC.
- Clear referral protocols for issues exceeding CJW scope.
Client Protection:
- Dedicated grievance process for CJW-client relationships.
- State Bar application/approval and program reporting to the Court and Bar.
Limited Appearance and Scope: Representation, advice, and document preparation are confined to the authorized subject areas in courts of limited jurisdiction.

Impact and Implications

The Court’s authorization has several likely effects:

Access to Justice: Survivors seeking Orders of Protection—often in crisis, and concentrated in communities with few or no available attorneys—gain meaningful advocacy for critical protective remedies.
Judicial Efficiency and Fairness: Trained representatives can improve case presentation, reduce continuances caused by unprepared litigants, and help ensure orders are legally sufficient, all supporting judicial economy and safety outcomes.
Professional Responsibility Clarity: Participating attorneys and courts receive clear parameters for permissible nonlawyer assistance, reducing UPL complaints and the chilling effect documented in Steele.
Measured Expansion: By requiring training, certification, and reporting—and by beginning with OP matters—the program functions as an evidence-based, risk-managed regulatory innovation. It creates a foundation for potential, data-informed expansion into simple housing and consumer dockets if outcomes warrant.
Rural and Tribal Collaboration: The model leverages MLSA’s Tribal Advocacy Incubator Project and partnerships with local service providers, aligning legal assistance with community-based support networks.

Complex Concepts Simplified

Unauthorized Practice of Law (UPL): Laws and rules that prevent nonlawyers from giving legal advice, appearing in court, or doing other tasks reserved for attorneys. The CJW program creates a narrow, court-approved exception with safeguards.
Courts of Limited Jurisdiction: Justice Courts and City Courts handle certain types of cases (e.g., misdemeanors, small civil matters). They are distinct from District Courts. Montana’s UPL penalty statute expressly excludes these courts from its contempt provision, which supports piloting tightly regulated nonlawyer practice here.
MRPC 5.5(b): A rule barring lawyers from assisting nonlawyers in UPL. The Court’s authorization clarifies when assistance is lawful, protecting both lawyers and CJWs who operate within the program’s guardrails.
Informed Consent: Clients must be told, in plain language and in writing, that the CJW is not a lawyer, the scope of services, limits on confidentiality/privilege, and when matters will be referred to an attorney.
Student Practice Rule Analogy: Montana already allows law students who meet certain criteria to perform legal work. The CJW program is similar in concept—nonlawyers may help, but only after training and under supervision.
Attorney-Client Privilege vs. Confidentiality: Confidentiality is an ethical duty not to reveal client information. Privilege is an evidentiary shield preventing forced disclosure in court. The program requires CJWs to maintain confidentiality akin to lawyers. Privilege is typically strongest for communications with attorneys (and their agents). When CJWs act under attorney supervision as part of legal service delivery, many communications may be treated as covered by privilege via agency principles; when CJWs operate independently, privilege questions can be more complex and may require careful program protocols and client disclosures.

Discussion of Key Tensions and How the Order Addresses Them

Consumer Protection vs. Access: The traditional rationale for UPL (consumer protection) is acknowledged, but the Court, relying on targeted training, informed consent, conflicts checks, and close supervision, balances that concern against the demonstrable harms of no representation for high-risk litigants.
Institutional Accountability: By routing approvals through the State Bar and placing ongoing oversight with MLSA (including a grievance process and data reporting), the program ensures a feedback loop for monitoring quality and public protection.
Lawyer Ecosystem: The program is complementary to, not a replacement for, attorneys. It channels complex cases to lawyers and is built around supervised practice—reinforcing, rather than displacing, the centrality of licensed counsel in complex or high-stakes matters.

Precedential Positioning and Broader Legal Context

This administrative action places Montana among jurisdictions experimenting with tightly bounded nonlawyer practice pathways, with distinctive features:

Court-Led, Narrowly Tailored: Unlike broad, stand-alone paraprofessional licensing regimes, Montana’s approach is court-anchored, limited to specific courts and subject areas, supervised by a legal aid provider, and designed to meet documented needs.
Integration with Tribal Advocacy: Montana’s CJW model leverages firsthand experience from the Tribal Advocacy Incubator Project, reflecting the state’s unique geography and community networks.
Data and Iteration: The program’s reporting mandate permits iterative improvements and evidence-based decisions about scaling or scope adjustments.

Implementation Considerations for Courts and Practitioners

Entry of Appearance: Courts may wish to utilize or require a specific CJW entry-of-appearance form that discloses nonlawyer status and scope, and confirms the client’s informed consent is on file.
Ethical Conflicts and Screening: CJWs should implement standardized conflicts checks, with ready access to supervising attorneys when screening questions arise.
Privilege and Documentation: When acting under attorney supervision, documentation should reflect the supervisory relationship to support privilege claims; client advisories should explain any limits.
Referral Triggers: Clear criteria should be maintained for when a matter is “too complex” or “outside scope,” prompting a handoff to an MLSA attorney (e.g., contested hearings involving complicated evidentiary issues or related custody litigation).
Courtroom Protocols: Judges may consider brief on-the-record colloquies to confirm CJW status and scope, avoiding later disputes.

Conclusion

In AF 11-0765, the Supreme Court of Montana adopts a carefully engineered, access-to-justice innovation: certified, supervised Community Justice Workers may deliver limited legal services in Justice and City Courts, initially for Order of Protection matters. By amending Rule 14 and establishing a certification and oversight framework through MLSA and the State Bar, the Court crafts a narrow exception to the unauthorized practice of law that is grounded in data, aligned with consumer protection, and responsive to the acute needs of rural and tribal communities.

The significance of this development is twofold. First, it provides immediate, practical relief to survivors seeking protection, enhancing courtroom efficacy and safety outcomes. Second, it models an incremental, evidence-based approach to regulated nonlawyer assistance—one that honors Montana’s constitutional allocation of regulatory authority to the judiciary while building in safeguards, supervision, and accountability. The CJW program stands as a measured, principled step toward ensuring that the promise of justice reaches those who need it most.