Non-Lawyers as a Means of Increasing Access to Justice in Administrative Proceedings
Edie Knoop
Just months into the Trump Administration, the federal administrative state is facing mass layoffs and widespread uncertainty about the future for many federal employees. As part of his government overhaul, President Trump has ordered the firing of probationary employers, numbering an estimated 220,000.[1] Commentators have already raised concerns that actions taken by the newly formed Department of Government Efficiency could, among other things, threaten the timely distribution of Social Security and veterans’ benefits.[2]
Significantly, the Department of Justice recently declared that the removal restrictions on administrative law judges (‘ALJs’) are unconstitutional.[3] 86% of such judges work within the Social Security Administration.[4] Last year alone, they decided over 425,000 appeals.[5] ALJs play an especially vital role for those appealing the termination of their social security disability benefits by acting as a fair, independent, and efficient adjudicator.[6] As administrative hearings are non-adversarial, ALJs take on a significant fact-finding role: they can issue subpoenas, call witnesses to testify, and request evidence from the appellant before they ultimately rule on a case.[7] A threat to their protection from presidential removal thus threatens fair access to benefits termination appeals by undermining ALJs’ independence and neutrality.
Even before these sweeping changes to the administrative state, Americans faced a multitude of challenges accessing administrative proceedings. Such obstacles include, for example, difficulty accessing information regarding eligibility and enrollment, lack of clear explanatory language, stigma, language barriers, lack of disability accommodations, and lack of access to the internet or technology.[8] In the face of heightened uncertainty about the future of many federal programs, these issues may loom even larger for litigants seeking a remedy in an administrative proceeding.
The Legal Aid Interagency Roundtable (‘LAIR’) is a coalition of several administrative agencies and government offices that work together to address barriers to legal access.[9] LAIR releases periodic reports making recommendations to improve access to justice and tracking progress.[10] In previous reports, LAIR has promulgated recommendations to simplify administrative processes and procedures to reduce the need for legal counsel to access government programs.[11]
However, even where agencies managed to simplify their processes and procedures, there are still some proceedings where fairness to litigants necessitates access to legal assistance. Thus, in 2023, LAIR released a report identifying a second overarching strategy to improve access to justice in administrative proceedings: increasing representation and assistance by both lawyers and non-lawyers.[12] The Federal Administrative Procedure Act (‘APA’) provides that people are entitled to be represented by counsel or, if the agency permits, “another duly qualified representative.”[13] When people have legal assistance, the data indicates that they face better outcomes.[14] For example, asylum seekers’ success rates jump from 16.3% to 45.6% when represented.[15] Likewise, a study by the Government Accountability Office indicated that disability claimants had three-times the success rate when represented in hearings.[16]
However, merely providing that people are entitled to hire counsel is not a solution in and of itself. Legal aid resources are limited, and many people cannot afford to hire lawyers. This concern is heightened in the context of administrative proceedings where litigants may be fighting for the continuation of benefits necessary for them to provide for their basic needs. Even those with middle-class incomes frequently struggle to afford legal counsel, and yet often earn too much income to qualify for legal aid.[17]
While LAIR suggested increasing the federal government’s funding of legal aid, as well as raising awareness of existing programs to enable people who qualify to access the programs, the broad sweep of changes administrative agencies are currently undergoing makes these solutions seem less certain.[18] Thus, while these proposed changes could be impactful, in the face of an administrative state in flux, it is important to find other ways of increasing representation.
Notably, the report also suggests the use of non-lawyers as a potential solution.[19] Under the APA, all agencies with administrative hearings permit representative assistance with such hearings.[20] While some agencies have accreditation programs, most agencies also permit non-lawyer representation when the representative is chosen by the litigant and complies with agency rules.[21]
Commentators have noted four general rationales for why non-lawyers might be preferable to lawyers in administrative proceedings: 1) areas of specialized practice where non-lawyers such as accountants may be better suited to provide advice, 2) cases where legal questions are simple or less dominant, 3) a general belief in freedom of choice for litigants, and, most notably, 4) the unavailability of lawyers, particularly in light of financial concerns.[22] In light of the aforementioned concerns regarding the inaccessibility of lawyers to many litigants in administrative proceedings, the lower fees charged by non-lawyers could allow many people to afford representation that otherwise would be inaccessible. While there may be concerns that non-lawyers are less equipped to provide suitable legal services to litigants, administrative proceedings tend to be both more informal and involve less complex questions of law.[23] Further, administrative hearings are non-adversarial. Thus, this concern may be more limited in regard to administrative proceedings than it is in other types of legal proceedings.
Under the current administration, agencies cannot be counted upon to expand non-lawyer representation. However, not all assistance by non-lawyers is representational. Non-lawyers can also provide non-representational support by, among other things, helping people fill out forms or walking litigants through administrative procedure.[24] Such[ES1] [KE2] [KE3] non-representational information provision would provide a relatively low-cost way to improve access to justice in administrative proceedings for litigants who cannot afford traditional legal representation. It would provide a pathway to navigate the increasingly uncertain waters of federal administrative agencies, where representation and accessible information is increasingly important.
[1]Chris Megerian & Michelle L. Price, Trump Administration Begins Sweeping Layoffs with Probationary Workers, Warns of Larger Cuts to Come, Associated Press (Feb. 13, 2025), https://apnews.com/article/trump-federal-workers-layoffs-doge-406752da1614755b8fabe9c94e0c71a8.
[2]Elaine Kamarck, How DOGE Cutbacks Could Create a Major Backlash, Brookings (Feb. 14, 2025), https://www.brookings.edu/articles/how-doge-cutbacks-could-create-a-major-backlash/?utm_campaign=Brookings%20Brief&utm_medium=email&utm_content=347451013&utm_source=hs_email.
[3]Jasper Ward & Luc Cohen, US Declares Administrative Law Judge Removal Rules Unconstitutional, Reuters (Feb. 21, 2025), https://www.reuters.com/legal/us-declares-administrative-law-judge-removal-rules-unconstitutional-2025-02-21/.
[4]Kathleen Romig, Trump Administration Action Against Social Security Judges Threatens Fair Access to Benefits, Center on Budget and Policy Priorities (Mar. 14, 2025), https://www.cbpp.org/research/social-security/trump-administration-action-against-social-security-judges-threatens-fair.
[5]Id.
[6]Id.
[7] Hearing Process, Soc. Sec. Admin., https://www.ssa.gov/appeals/hearing-process.html (last visited Apr. 3, 2024); Presenting Evidence at a Hearing Before an Administrative Law Judge, 20 C.F.R. § 404.950 (2024).
[8] Legal Aid Interagency Roundtable, Access to Justice in Federal Administrative Proceedings: Nonlawyer Assistance and Other Strategies 7 (2023) [hereinafter 2023 LAIR Report].
[9] Legal Aid Interagency Roundtable, Office for Access to Justice, U.S. Department of Justice (Mar. 12, 2025), https://www.justice.gov/atj/legal-aid-interagency-roundtable.
[10] Id.
[11] 2023 LAIR Report, supra note 7, at vii.
[12] Id. at 12.
[13] 5 U.S.C. § 555(b).
[14] 2023 LAIR Report, supra note 7, at 19.
[15] Emily S. Taylor Poppe & Jeffrey J. Rachlinski, Do Lawyers Matter? The Effect of Legal Representation in Civil Disputes, 43 Pepp. L. Rev. 881, 910 (2016).
[16] 2023 LAIR Report, supra note 7, at 20.
[17] Suzanne Blake, Middle-Class Americans Can’t Afford to Lawyer Up, Newsweek (Jan. 24, 2024), https://www.newsweek.com/middle-class-afford-lawyer-fees-legal-help-1863747.
[18] 2023 LAIR Report, supra note 7 at 21-22.
[19] Id. at 25.
[20] Id.
[21] Id. at 26.
[22] Jonathan Rose, Nonlawyer Practice Before Federal Administrative Agencies Should Be Encouraged, 37 Admin. L. Rev. 363, 365-66 (1985).
[23] Id. at 269.
[24] 2023 LAIR Report, supra note 7, at 31.