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Washington state moves around UPL, using legal technicians to help close the justice gap

By Robert Ambrogi

January 1, 2015, 5:50 am CST

Michelle Cummings looks forward to this spring, when she expects to take on her first law client. By then, the Auburn, Washington, resident will have completed her studies and taken the state licensing examination. Provided she passes, she will begin practicing right away.

Cummings' story could be that of any number of new lawyers looking forward to finishing law school and taking the first fledgling steps of their careers. But Cummings is not attending law school—at least not as lawyers know it—and she has no plans to become a lawyer.

Rather, Cummings is on a historic path to become one of Washington's (and the nation's) first limited license legal technicians. These nonlawyers will be licensed by the state to provide legal advice and assistance to clients in certain areas of law without the supervision of a lawyer.

The first practice area in which LLLTs will be licensed is domestic relations. Cummings and 14 others have taken the required courses and will sit for a licensing examination in March. The state will begin licensing those who pass in the spring.

Cummings' focus will be family law. For now, she plans to work at the Fiori Law Office, a two-lawyer Auburn firm. Someday she may start a practice of her own.

"I like the idea of being part of a firm," Cummings says. "If Loretta were to retire, then I have the option of hanging my own shingle. I like that idea, knowing that I'm building an opportunity where I wouldn't have to find a new job."

A paralegal since 1998, Cummings is also excited about having clients of her own. "Paralegals tend to multitask. I'll get to finally sit down at my desk, focus on the client and do the job they are paying me to do."

NOSING IN

Within a profession that so guardedly polices its practice, many may see Cummings and her classmates as representing the proverbial camel's nose under the tent. So far, Washington stands alone in formally licensing nonlawyers to provide legal services. But California is actively considering nonlawyer licensing, and several other states are beginning to explore it. New York has sidestepped licensing and is already allowing nonlawyers to provide legal assistance in limited circumstances while also looking to expand their use.

In its January 2014 final report, the ABA Task Force on the Future of Legal Education called on states to license "persons other than holders of a JD to deliver limited legal services." Now this issue of allowing nonlawyers to provide legal services is among the topics being taken up by ABA President William C. Hubbard's Commission on the Future of Legal Services.

"I fully anticipate that it will be one of the concepts that will be addressed by the commission," Hubbard says, noting that his appointees to the 28-member commission include both Barbara A. Madsen, chief justice of the Washington Supreme Court, which promulgated the LLLT rule, and Paula Littlewood, executive director of the Washington State Bar Association, which administers the LLLT program.

"The states are the laboratories of invention," Hubbard adds. "This is a good example of that. I think there is growing acceptance by regulators and private practitioners of law that we need to do things differently."

Proponents maintain there is simply no other way to address the justice gap in the United States. They cite multiple state and federal studies showing that 80 to 90 percent of low- and moderate-income Americans with legal problems are unable to obtain or afford legal representation. The economics of traditional law practice make it impossible for lawyers to offer their services at prices these people can afford.

If lawyers cannot fill the gap, the proponents say, we must find some other way.

"Even with whatever success we've had with public funding of legal services and pro bono work by lawyers, there is still a gaping hole in our system of providing legal services to the poor and people of limited means," says New York Court of Appeals Chief Judge Jonathan Lippman, who has emerged as a leading advocate of allowing nonlawyers to provide limited services.

"We need to think out of the box and look at every possible avenue for filling this justice gap," Lippman says. "You can get nonlawyers who are experts in a particular area of legal assistance and who can be more effective in that area than a generalist lawyer."

Lippman says his interest in using nonlawyers was sparked by Gillian K. Hadfield, a professor of law and economics at the University of Southern California and another leading advocate for using nonlawyers to bridge the justice gap. After hearing her speak at a Harvard Law School forum, he invited her to New York to testify before his Task Force to Expand Access to Civil Legal Services.

"There is an urgent need for the judiciary to change the landscape of options available to those with legal needs," Hadfield said in her Oct. 1, 2012, testimony, "to exercise your ultimate authority to decide who can provide legal assistance by expanding that list beyond expensive JD-trained and bar-licensed attorneys.

"Of course we want some services delivered only by expensive JD-trained and bar-licensed attorneys—we only want surgery performed by surgeons too," Hadfield continued. "But where are our nurse practitioners? Our legal systems desperately need the equivalent of nurse practitioners and other non-MD health care providers. We need non-JD legal providers who can perform simpler legal work at much lower cost and thereby fill an enormous part of the gaping legal need in this state."

In May 2013, Lippman appointed a committee with the specific charge of studying this issue, the Committee on Non-Lawyers and the Justice Gap. He asked the committee to focus on the use of nonlawyers in housing, elder law and consumer credit cases—areas where as many as 90 percent of litigants in the New York courts are without lawyers.

NEW YORK'S NAVIGATORS

The recommendations of this committee resulted in Lippman's launch in February 2014 of a pilot program in which nonlawyers, called navigators, provide free assistance to unrepresented litigants in housing cases in Brooklyn and consumer debt cases in the Bronx and Brooklyn. Navigators provide a range of assistance, from general information given at help desks to one-on-one help completing legal forms and assisting in settlement negotiations.

Navigators may also accompany unrepresented litigants into the courtroom. While they are not allowed to act as advocates in court, they are able to answer questions from the judge and to provide the litigants "moral support."

In Albany, Lippman created a second project that uses nonlawyers to advise elderly and homebound residents about their eligibility for benefits and other services.

"Perhaps we need to take a leaf from the medical profession, which has long recognized that people with health problems can be helped by a range of assistance providers with far less training than licensed physicians," Lippman said in announcing the initiatives during his 2014 state of the judiciary address. "We all accept that. Why not the same in the law?"

New York's navigators are generally college and law students. They must commit to volunteer for a minimum of 30 hours within three months of their training. A 2½-hour seminar and accompanying manual train them in the basics of housing and consumer-debt cases, as well as interviewing and communication skills. They receive no formal licensing.

Some receive a stipend for their work, such as Sagar Sharma, a prelaw senior at the City College of New York. He came into the program through a summer internship sponsored by Skadden, Arps, Slate, Meagher & Flom. Sharma's full-time work in the housing court last summer earned him an award for outstanding volunteer service.

By contrast, the Washington program under which Cummings hopes to be licensed looks surprisingly similar to state schemas for lawyer licensing and oversight.

It is regulated by the state supreme court and administered by the court-appointed Limited License Legal Technician Board. Like lawyers, LLLTs will be subject to strict education requirements, must pass a qualifying examination, will be subject to disciplinary procedures and ethical rules, and must be covered by malpractice insurance.

The Washington Supreme Court created the LLLT program on June 15, 2012, with its promulgation of Admission to Practice Rule 28. In an opinion that accompanied the rule, the court explained that it acted in response to "a ballooning population of unrepresented litigants."

"The authorization for limited license legal technicians to engage in certain limited legal and law-related activities holds promise to help reduce the level of unmet need for low- and moderate-income people who have relatively uncomplicated family-related legal problems and for whom some level of individualized advice, support and guidance would facilitate a timely and effective outcome," the court said.

BORN FROM CONCERNS

Ironically the rule had its genesis in concerns about unauthorized law practice in the state. Acting on the belief that the UPL problem was driven, at least in part, by the lack of a definition of authorized law practice, the state bar formed a committee in 1998 to come up with one. In 2001, the supreme court adopted the committee's recommended definition as General Rule 24.

The court, however, was concerned that simply defining law practice would not be enough to protect the public from unauthorized practice, recalls Stephen R. Crossland, a Cashmere, Washington, sole practitioner who served on the UPL committee. For this reason, the court simultaneously promulgated General Rule 25, creating a Practice of Law Board to "make recommendations regarding the circumstances under which nonlawyers may be involved in the delivery of certain types of legal and law-related services." The court named Crossland chair.

As the POLB went to work studying the expanded use of nonlawyers, another committee was also at work in Washington studying the extent to which the state was meeting the civil legal needs of its residents. In a 2003 report, the committee concluded that low-income people in Washington face 88 percent of their legal problems without help from an attorney. Existing legal services programs, the study said, "are unable to address more than a very small portion of existing demand, never mind expanded demand."

These findings dovetailed with the work of the board and helped spur it to propose a rule authorizing legal technicians, Crossland says. "We called it a legal technician rule, but I think a better way to categorize it is as another category of authorized legal service providers."

In 2006 the POLB submitted the draft rule to the board of governors of the Washington State Bar Association. The response was, perhaps, predictable: The board voted to oppose it. Still, board members left the door open for the POLB to revise the rule and return for reconsideration.

The POLB refined the rule and drafted regulations to govern its implementation. In January 2008, it submitted its revised proposal to the supreme court for approval. The state bar's board of governors asked the court to hold off on action so as to give them time to solicit feedback from members and formulate a position. Late in 2008, the board of governors again voted to oppose the rule.

For four years, the rule sat at the supreme court. In 2009 the court published the rule for public comment. It twice placed the rule on its agenda for a vote, in 2010 and 2011, but each time it tabled the vote to a later date.

Then in February 2012, the POLB submitted further revisions to the court. The revisions were an attempt to address some of the concerns of the state bar, which remained opposed to the proposed rule. This version also changed the name from "legal technician" to "limited license legal technician." In June 2012, the supreme court finally voted to approve the rule, effective Sept. 1, 2012.

"The licensing of limited license legal technicians will not close the justice gap identified in the 2003 civil legal needs study," the court says in its order. "Nor will it solve the access-to-justice crisis for moderate-income individuals with legal needs. But it is a limited, narrowly tailored strategy designed to expand the provision of legal and law-related services to members of the public in need of individualized legal assistance with noncomplex legal problems."

INDEPENDENCE WAY

In Washington legal circles they are now known as "triple-LTs." They will be free to set their own fees and work independently of lawyers, even opening their own offices. The laws of attorney-client privilege and of a lawyer's fiduciary responsibility to the client will apply just as they would to an attorney.

LLLTs will be authorized to help clients prepare and review legal documents and forms; advise them on other documents they may need; explain legal procedures and proceedings, including procedures for service of process and filing of legal documents; and gather relevant facts and explain their significance. They may also perform legal research, but only if the work is approved by a Washington lawyer.

LLLTs may not accompany clients into court or engage in negotiations on a client's behalf. The LLLT board is considering whether to propose an amendment to the rule that would allow LLLTs to engage in these activities.

To become an LLLT, an applicant must have at least an associate's degree and complete 45 credit hours of core curriculum currently being taught at community colleges in the state. The core curriculum is specified by court rule and covers topics such as civil procedure, contracts, legal research and writing, professional responsibility, and law office procedures and technology.

In addition, applicants must complete courses specific to the practice area in which they seek to be licensed. For family law, the only approved practice area so far, the 15-hour curriculum was developed jointly by the state's three ABA-approved law schools—at Gonzaga University, Seattle University and the University of Washington. Applicants also must have 3,000 hours of substantive law-related work experience supervised by a licensed lawyer.

To help get the program started, the LLLT board decided to offer a waiver of the core education requirements until Dec. 31, 2016. To qualify for the waiver, applicants must have passed a certified paralegal examination and have completed 10 years of experience working as a paralegal under a lawyer's supervision. (The candidate must apply within five years of completing those 10 years of work experience.)

Once licensed, LLLTs will be subject to a regulatory framework similar to that for lawyers. They will be required to pay an annual license fee, fulfill annual continuing education requirements, set up IOLTA accounts for handling their clients' funds, and maintain professional liability insurance in the amount of at least $100,000 per claim and $300,000 annual aggregate.

IN CALIFORNIA, CRITICAL NEEDS

Down the Pacific coast, State Bar of California officials have been paying close attention to Washington's program. In March 2013, the bar appointed a Limited License Working Group to look at whether California should adopt a similar legal technician program. After a series of public hearings, the working group came out in July 2013 in favor of the concept and urged the bar to conduct an expanded study.

Craig Holden, now California state bar president, chaired that working group and believes the need for alternative licensing models is unavoidable given the crisis in the delivery of legal services.

"The fact is that the justice gap has grown exponentially in the last several years," says Holden, a Los Angeles-based partner at Lewis Brisbois Bisgaard & Smith. "Since the 2008 recession, more than 6 million Californians have fallen below the poverty line."

Compounding the problem, he says, is that funding for legal services has dropped precipitously due to historically low interest rates causing dramatic reductions in IOLTA programs, a principal source of legal services funds.

"As a service profession, we must recognize that when you have 90 percent of people in critical areas of need not using lawyers because they can't afford them, then by any definition that's a crisis," he says.

California should authorize limited licenses similar to the Washington model in areas of significant need, such as family law, immigration and landlord-tenant law, Holden believes, with the licenses subject to strict requirements for education, experience and examination.

"This is not designed to take food off lawyers' plates," Holden says. "It is designed to home in on that large body of consumers who cannot hire a lawyer and who lawyers are not serving in any event."

Joseph L. Dunn, former state bar executive director, agrees. He sides with those who argue the economics of law practice make it impossible for lawyers to charge prices most consumers can afford. "This is not just a problem for the poor—it's gone beyond the poor to the middle class."

In November 2013 the California bar appointed a Civil Justice Strategies Task Force with a broad mandate to develop a plan for addressing the state's justice gap. The limited license is among the topics it is considering.

Even if the task force comes out in favor of a limited license, it could be years before a proposed rule would be presented to the state supreme court, Holden notes. How it would be received there is anyone's guess.

OTHER STATES

The idea of authorizing nonlawyers to provide limited legal services has percolated for years. In the early 1990s, both California and Oregon appointed task forces to consider limited licensing. Washington already has a form of limited practice, the "limited practice officer," approved in 2009 to help prepare documents for real estate and personal transactions. California, too, permits "legal document assistants" to provide aid to consumers.

But as other states confront their own justice gaps, Washington's first-in-the-nation limited-license rule seems to have captured their attention and spurred new interest in nonlawyers as a partial solution.

"We have received a flurry of interest from other states that are looking at this," says Paula Littlewood, the Washington bar's executive director. "People say to me: 'It scares me to death, but I know it is coming.' "

Crossland, who chairs the LLLT program, says, "I've had conversations with Colorado, New Mexico and California, and I've also spoken to New York, Ohio, Oregon and North Carolina."

CONCERN FOR CONSUMERS

In both Washington and California, opposition to limited licensing has focused on the potential harm to consumers. Even with advanced training, opponents say, legal technicians differ little from paralegals and lack the competency to handle complex legal matters without an attorney's supervision.

Typical of this view was the testimony presented by Seattle family lawyer Ruth Laura Edlund, a partner at Wechsler Becker and the former chair of the WSBA's Family Law Section, at a Feb. 23, 2012, town hall forum sponsored by the bar to air views on the limited license proposal.

"This rule is in my view a feel-good rule that would make us feel that we're doing something good, but all we're providing is access to injustice, because the class of individuals described is not going to have the competency to actually do for the poor what needs to be done," Edlund said. "Just because you're poor doesn't mean your legal problems are simple."

Opponents in California raised similar concerns. In a Feb. 1, 2013, letter to the California bar, solo Stephen E. Ensberg of West Covina questioned the competency of paralegals to provide unsupervised legal services. He said that clients frequently come to him to fix work done by independent paralegals and document preparers who have no attorney supervision.

"The state bar proposal now under consideration would simply give the veneer of legality to these unauthorized, ill-trained practitioners who do more damage than good," Ensberg wrote. "And they are not cheap, in any event. The proposal for licensed nonlawyers simply exposes the public to more harm than is already the current situation."

Another common concern is that limited licensing will have limited impact. While it is complicated and potentially costly for a state to set up and administer a limited licensing scheme, there is no guarantee that LLLTs will make any measurable gain in closing the justice gap, or even that they will charge affordable fees for their services, some say.

"Anyone who hangs out a shingle is operating in a business model that is enormously expensive," says Hadfield, the USC law and economics professor. The same factors that keep lawyers' hourly rates high—payroll, overhead, insurance, marketing and the like—will prevent LLLTs who hang out a shingle from charging affordable rates, she argues.

But Littlewood believes LLLTs will be able to keep their hourly rates low. The cost of entry to become one is much lower than to become a lawyer, she notes, so LLLTs are not burdened with debt starting out. Additionally, market forces will keep LLLT rates low, she argues. "If they charge near what a lawyer charges, the consumer will go to a lawyer."

Hadfield believes licensing nonlawyers alone will have only minimal impact in addressing the need for legal services. To make LLLT practice economical requires economies of scale, she argues, and that can be achieved only if private companies are allowed to provide legal services.

"Suppose LegalZoom or Rocket Lawyer could hire LLLTs and have them answering phone calls, engaging in online chats—maybe even manning retail outlets—and giving assistance actually filling out the forms and navigating the procedures, all based on protocols developed by lawyers and by the company," says Hadfield, who sits on LegalZoom's Legal Advisory Council. "That's the way you significantly reduce the gap. Then the LLLT can be hired at lower cost."

Hadfield further believes state regulation, not bar licensing, is the better way to expand legal services while still protecting consumers. "I don't think the bar and state supreme courts are set up to do the kind of regulation you want." She envisions a regulatory agency such as those that oversee many medical professions. The agency would license and oversee not only the nonlawyer professionals, but also legal services companies such as LegalZoom and Rocket Lawyer.

EMBRACING OPPORTUNITY

Back in Washington, Cummings and her classmates became the first class to complete the family law courses on Dec. 3, 2014. The licensing examination is scheduled for March.

Cummings credits her employer, Loretta M. Fiori-Thomas, for encouraging her to become an LLLT.

"I know there are some attorneys who aren't thrilled about this idea, but I appreciate that my boss is embracing it," Cummings says. "She is giving me the opportunity to better myself and the opportunity to help people. That's a gift.

"I look at this primarily as an opportunity to help people," she adds. "That's really what it's all about."

Meanwhile, in California, the fate of the LLLT remains uncertain. But former state bar executive director Dunn maintains that something must be done to address the unmet need for legal services.

"The profession has been struggling for years with different answers," Dunn says. "The question going forward is whether we want to embrace LLLTs or not.

"The unmet need is not shrinking, it's growing. We as a profession have to deal with this."

This article originally appeared in the January 2015 issue of the ABA Journal with this headline: "Authorized Practice: Washington state moves around UPL, using legal technicians to help close the justice gap."

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Correction

In print and initial online versions of “Authorized Practice,” January, University of Southern California law professor Gillian Hadfield should have been quoted as saying: “Suppose LegalZoom or Rocket Lawyer could hire LLLTs … .”

The ABA Journal regrets the error.

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Robert Ambrogi is a Rockport, Massachusetts, lawyer and writer.