Fundamental to our sense of justice is the idea that we are all equal before the law. But atmospheric equality is cold comfort without on-the-ground access to justice. Sir James Mathew, an Irish judge, said more than 100 years ago that justice in England is open to all, like the Ritz Hotel.1 Justice here, and no doubt now in England, is more accessible than a fancy hotel. But justice in a nation dedicated to liberty and the proposition that all of us are created equal should still be better. American efforts thus far to improve access to justice for all have fallen short, especially for those of us of low and moderate means.
While some law schools have made strides to fill that gap through programs such as the Gates Public Service Law Program at the University of Washington, the ARC Program at Seattle University, and the Root-Tilden-Kern Public Interest Scholarship at New York University, these programs are not producing enough lawyers to address the bulk of the problem. Lawyers and the public legal system are in danger of becoming less relevant to the average citizen. Increasingly, some “elite” law schools are chasing meaningless rankings by U.S. News & World Report2 and graduating new lawyers with homogenous backgrounds, who emerge from law school with tremendous debt and little practical experience, making it difficult for them to provide competent legal services at an affordable price. Yet, because we restrict who can provide legal advice and counsel, these lawyers are most people’s only choice. They are, for most people, no choice at all. Lawyers are either not available in certain areas or are simply too expensive. Like law schools, bar associations have also tried to address the problem of access to justice for people with limited means. Civil legal aid, pro bono by lawyers, and moderate means programs have not been sufficient to fill the growing need.3
The extent of the problem is well documented. The Washington Supreme Court published the first Civil Legal Needs Study in 2003,4 detailing how many people in Washington do not get the legal help they need due to scarce resources. Despite the documented need, we have not fixed the problem. In June 2015 we published an updated study5 detailing the ongoing unmet need for legal services, especially in the areas of health care and consumer debt.6 While the details may change over time, the fundamental problem of inadequate access to legal help is chronic and unabated.7
Lawyers have long opposed allowing nonlawyers to provide legal assistance for reasons fair and foul. One reason is the fear of creating a two-tiered system where the wealthy get a skilled lawyer and the rest of us get substandard representation. Ironically, the fear of substandard representation, lawyers’ near monopoly on legal services, and an inadequate civil legal aid system have led many people to struggle as pro se litigants or to seek help from nonlawyers. Some unauthorized practitioners have taken advantage of those in need, as have Internet entrepreneurs providing legal advice that may or may not be tailored to specific state law.
Rather than try to stop those who engage in the unauthorized practice of law through enforcement or pursue anticompetitive attempts to stifle online legal services, some have decided to try a new approach to meeting civil legal needs: creation of Limited Legal License Technicians (LLLT). In 2012, the Washington State Bar Association (WSBA) Board of Governors recommended and Washington Supreme Court approved the creation of a new category of limited license legal professionals to begin working first in the area of family law. The WSBA executive director and the chief justice of the Washington Supreme Court have embraced this approach and, together with Steve Crossland, have spoken across the country about the new LLLT rule and its implications.
Here is how it is intended to work: To become a LLLT, a student must obtain an associate’s degree, complete forty-five credit hours in an ABA-approved legal program, complete applicable practice area courses at an accredited program, complete 3,000 hours of substantive legal work under the supervision of a lawyer, and pass the legal technician exam, among other things. LLLTs are not authorized to appear in court or to negotiate on behalf of clients. They are also required to refer their clients with needs beyond what a LLLT can provide to lawyers and to carry liability insurance. So far, nine people have passed the licensing requirements in Washington to work as LLLTs. Currently, family law is the only practice area authorized under the limited license. There are still many questions about the viability of the financial model for LLLTs given the limited practice area and the inability to negotiate or appear in court.
The LLLT board is exploring expansion of the LLLT practice areas beyond family law and may recommend expansion of LLLT authority as well, to include authority to negotiate and to appear in court for some matters. Expansion of LLLT power may be necessary to make LLLTs financially viable, but expanded authority will generate more resistance as LLLTs are directly competing with lawyers for clients, the risk of malpractice increases, and the line between lawyers and LLLTs becomes less clear.
The LLLT program is working to get off the ground. Some seek to eliminate it or at least to slow down expanding the scope of practice or authority LLLTs are given. The current model may not allow financially viable businesses, leaving LLLTs with debt and no professional practice to pay it. Failure of this program would leave low and moderate means Washingtonians with the same unmet civil needs they have now. Even if the LLLT program is wildly successful, it will likely never be successful in meeting the needs of low income residents who simply cannot afford to pay for legal services at market rate, even at rates charged by LLLTs. At most, LLLTs will assist those who can afford to pay for legal assistance for routine legal matters that do not require an attorney.
Of course, we must not give up on our foundational ideal that we are all equal before the law. While we continue to evaluate and explore ways to have LLLTs serve Washingtonians in need of legal assistance, we must continue to find new ways to meet the unmet needs identified in the most recent Civil Legal Needs Study.
- Adopt a consumer protection approach to access to justice. (In other words, focus on what is good for the client and the public, not the practitioner or the court system.)
- Make legal education affordable, relevant, and open to people from diverse backgrounds. (Stop caring about school rankings and stop using the LSAT, which does not predict success as a lawyer or dedication to pro bono and measures mostly exam scores and parental income.)
- Emphasize clinical work and other practical experience in law school or adopt a system of interning such as in the medical profession.
- Accept that quality legal services, especially for form-based practice areas, can be provided via the Internet at an affordable cost.
- Accept that legal services can be provided by nonlawyers (indeed they already are in many forms).
“If justice is not equal for all, it is not justice.”8 Law guards the gateways to justice. Without competent legal assistance, many people will be denied entry through those gates. As a profession, we must find ways to open those gates for all. I hope we will.
1 Anatole France, The Red Lily, 1894, chapter 7. Or, as Anatole France famously wrote in 1894, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
2 The American Bar Association does not support or participate in law school rankings. In addition, the Association of American Law Schools is critical of U.S. News’s ranking system. Carl Monk, its former executive director, said “these rankings are a misleading and deceptive, profit-generating commercial enterprise that compromises U.S. News & World Report’s journalistic integrity.”
3 Pro bono programs are successful in increasing assistance in certain cases, but are nowhere near sufficient to address the outstanding need for legal services. Unfortunately, only 17 percent of Washington lawyers report that they provide services pro bono. Communication with James Bamberger, Director of the Washington State Office of Civil Legal Aid (Dec. 16, 2015) (on file with author). Civil legal aid is successful for certain clients in certain areas, but many restrictions apply to federally funded legal services. The system is not sufficiently funded to meet the need more broadly and certainly not for people who are not qualified for civil legal aid but nonetheless are not able to afford an attorney. The basic standard for determining eligibility for state or federally funded civil legal aid is 125 percent of the federal poverty level (FPL), with some exceptions that allow assistance for persons with incomes up to 200 percent of FPL. For example, to be eligible for civil legal aid services, a family of three must make no more than $24,413/yr.
4 The Task Force adopted a three-part approach, drawing on the best practices of two previous major legal needs studies—a national study conducted by the American Bar Association in 1994 and a study conducted in the state of Oregon in 2000. It commissioned a field survey of in-depth interviews, similar to that of Oregon, and simultaneously commissioned a telephone survey of randomly chosen households, similar to that used by the American Bar Association. To these were added a new survey, one seeking anecdotal input from a broad array of legal and social services professionals. The study concluded: “The findings are very troubling and have significant implications for our state’s justice system. Many thousands of our state’s most vulnerable residents have serious legal problems and cannot get any help in resolving them. Many don’t even realize their situations have a legal dimension. Others don’t know where to seek help or are too overwhelmed to try. Meanwhile they are systematically denied the ability to assert and enforce fundamental legal rights, and forced to live with the consequences.” Id. at 5. Not surprisingly, the study found that women and children have more legal problems than the general population, and low-income people who get legal assistance experience better outcomes and have greater respect for the justice system than those who do not.
5 In 2014, The Office of Civil Legal Aid entered into a contract with Washington State University’s Social and Economic Sciences Research Center (WSU-SESRC) to conduct the comprehensive reassessment of the civil legal problems of Washington’s low- and lowest-income residents. WSU-SESRC’s approach employed two separate but complementary components:
- A mixed-mode (web, mail, and phone) statewide probability survey of low-income respondents; and of low-income respondents; and
- A non-probability survey of individual low-income people throughout Washington who represent groups that were unlikely to be sufficiently represented in an address-based probability survey.
6 More than 70 percent of low-income households had a civil legal problem within the prior twelve-month period, and more than three-quarters of those who had a legal problem did not seek or were not able to obtain legal help with respect to these problems. Consistent with the findings of the 2003 study, large percentages of low-income people did not get help because they did not understand that the problems they face have a legal dimension or because legal help was not available. We also found significant differences from the 2003 findings. Most striking is the growth in the per capita incidence of civil legal problems, from 3.3 per household/yr. in 2003 to 9.3 per household/yr. in the 2014 CLNS Update. We also found significant changes in the types of problems most often experienced by low-income Washingtonians. Whereas low-income respondents to the 2003 survey reported the greatest percentage of problems in the areas of housing, family relations, and employment, respondents to the 2014 survey reported the highest percentage of problems in the areas of health care, consumer finance, and employment.
7 Read the full report. Some additional important findings generated from the research effort include:
- Victims of domestic violence continue to have the highest number of legal problems per capita, averaging nearly eighteen problems per household/yr.
- Significant disproportionalities in the prevalence of legal problems are experienced by African Americans, Native Americans, Hispanic/Latinos, persons with disabilities, and youth.
- Low-income respondents continue to experience high levels of problems associated with discrimination and unfair treatment. The highest rates of discrimination are experienced by racial and ethnic minorities, Native Americans, persons with disabilities, victims of domestic violence, and youth. Discrimination and unfair treatment rates are highest in the areas of employment, rental housing, consumer finance, and health care. Youth experience high rates of discrimination and unfair treatment based on their sexual orientation and gender identity.
- In addition to discrimination and unfair treatment on the basis of legally protected characteristics (e.g., race, gender, age, disability), significant percentages of low-income households experience unfair treatment on the basis of their credit histories, prior juvenile or criminal justice system involvement, and their status as victims of domestic violence or sexual assault.
- The degree to which low-income Washingtonians look with confidence to the civil justice system for resolution of their legal problems differs by race, age, gender, family composition, and other demographic and status-based characteristics.
8 State v. Monday, 171 Wn. 2d 667, 680, 257 P.3d 551 (2011).