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Vol. 38, No. 1

An inside look at limited practice for nonlawyers in Washington and other states

by Dan Kittay

As society changes, the expectations people have about how they want to get legal services, and what the role of lawyers is, also changes. One likely result is that nonlawyers will play an increasing role in the delivery of legal services.

So said panelists at “Thinking Outside the Bar Box: Preparing Your Members and Staff for New Trends in Legal Services Delivery,” a program at the 2013 Annual Meeting of the National Association of Bar Executives, in San Francisco.

“We have the irony of ‘too many lawyers,’ and at the same time a family of four earning $80,000 a year can’t get most of their legal needs met,” said moderator Paula Littlewood, executive director of the Washington State Bar Association.

Washington training program to start soon

Washington state has been a pioneer in the move to allow nonlawyers to engage in the limited practice of law. Prodded by the state’s Supreme Court, the WSBA has played a key role in the newly created Limited License Legal Technician Board, which has focused on developing rules and definitions that will lead to an expected September 2013 startup of the first class of limited license technicians. That class will focus on family law matters, said Stephen R. Crossland, chair of the LLLTB and past president of the WSBA.

Bar associations and the legal profession have a duty to ensure access to justice and also to make sure that members of the public don’t “fall prey” to unregulated nonlawyers, Crossland said.

The state Supreme Court gave the LLLTB one year, from when the court decided to implement its own nonlawyer proposal, to have the training program for technicians up and running. The board has spent a lot of time coordinating the role of the state’s law schools, developing rules of conduct and discipline for the technicians, and making sure the programs are affordable and accessible for technicians-in-training, Crossland noted.

While there are many areas of law where needs are unmet, officials chose family law for the start of the technician training and licensing program. The one-year course will have the class taking its licensing exam in September 2014.

California opts to support limited licensing

To the south, the State Bar of California’s board of trustees was closely watching Washington’s entrance into licensing nonlawyers, said Executive Director Joseph L. Dunn. Because California, too, has a high percentage of unmet civil legal needs, Dunn knew that it was a matter of time before officials would begin to impose solutions.

“We have a flooded legal marketplace, but unmet needs go up,” he said. “[Nonlawyer licensing] is something that’s coming. The only question is when. If you don’t do it yourself, it will be done by the government.”

The California bar set up a panel to examine the issue and, after some hearings, decided to support the idea. One key question that arose early was whether nonlawyers should be required to work under the supervision of a lawyer. Economists testified that such a requirement would essentially make the technicians the equivalent of paralegals, and all of the support costs associated with a law office would mean that the technicians would have to charge high fees in order to make them financially solvent. Fewer people could then gain access to the technicians, which would defeat the purpose of establishing the program in the first place, Dunn said.

But the same would be true if technicians were allowed to open their own practices, Dunn believes. They would face the same financial pressures solo practitioners face, and would “search for the highest fees they could get,” he explained. “They would go for the highest fees that were just below the low end of the legal market.”

The best place for technicians, Dunn said, would be as part of a provider such as LegalZoom, the online service that allows people to handle basic legal matters.

Opposition in both states

While California and Washington are moving ahead with their licensing programs, both efforts have faced and continue to face some opposition. When Washington’s Supreme Court initially proposed allowing nonlawyers to engage in the limited practice of law, the WSBA board of governors voted to oppose the proposal, Crossland noted. In California, the opposition has come “almost exclusively from lawyers,” Dunn said.

Moderator Littlewood said it’s natural that many lawyers would see such programs as a threat to their practice, but that creative lawyers could learn to make the new system work for them. “I could see young lawyers saying to themselves, ‘If I put together an army of technicians, I can get a lot of work done,’ ” with lower costs than using paralegals or doing the work themselves, she said.

With the LLT programs targeted at unmet legal needs, in theory their work should not interfere with lawyers’ caseloads, since they are not working on those matters now, panelists agreed.

The question of whether legal malpractice carriers would be reluctant to cover LLTs arose when Washington was establishing its program, Littlewood said. “I met with a carrier who was apprehensive,” she recalled. “I convinced them that other states would be doing this, and that they should get in on the ground floor, which they have decided to do.”

California’s Dunn noted that with the specialized training the LLTs will receive in their area of practice, “they may be less of a malpractice risk than new law school graduates.”

Another approach in Maryland

Licensing legal technicians was not the only approach discussed at the program. Antonia Fasanelli, who is director of the Homeless Persons Representation Project in Baltimore, was faced with a situation where there were 50,000 homeless people, with an agency that was equipped to represent about 1,000 of them. The project began to engage social workers in the legal processes for the types of issues that the chronically homeless were likely to face, says Fasanelli, who also chairs the ABA Commission on Homelessness & Poverty.

“Many of the chronically homeless have been on the streets for decades. They don’t know how to sign a lease, or deal with a landlord or finicky neighbors,” which can lead to legal problems, Fasanelli explained. “A person might say, ‘I lost my key. I don’t know how to deal with that.’ Instead of asking for a new one, they might try to break in, because that’s the easiest way to do it.

“We knew we would not have the resources to handle all cases like this, and it would be a shame if people lost their housing because of such small issues.”

The social workers help to handle such issues so that clients won’t face eviction. If eviction becomes imminent, then the case is turned over to a lawyer.

The ABA commission, meanwhile, has focused on the needs of homeless veterans. Nonlawyers have been recruited to help veterans who get charged with homeless-related misdemeanors, such as public urination and sleeping in parks, to get charges cleared and to help with finding shelter, Fasanelli said.

As for the social worker training effort, though she has been pleased with the results, she says it has some limitations because her organization can only do so much. “It would have been wonderful to have a more formalized program, provided by the state bar,” she said.