Debating The Pros and Cons of Non-lawyers Practicing Law

As I noted here recently, I have an article in the current issue of the ABA Journal about the use of non-lawyers to help close the access to justice gap by allowing them to provide legal advice in limited circumstances. A particular focus of the article is Washington state’s limited license legal technician (LLLT) program.

The article prompted two posts last week at Above the Law that considered the pros and cons of allowing non-lawyers to practice law.

In the first, Can Nonlawyers Close The Access-To-Justice Gap?, Sam Wright, a “dyed-in-the-wool, bleeding-heart public interest lawyer,” couldn’t quite decide how he feels about the idea. “It’s easy to see how this could be a win for low- and middle-income people who currently find themselves floundering in the access-to-justice gap,” he writes. But then he goes on to say that it is “also easy to see how this could be a blow to the present-day legal profession with its hordes of underemployed lawyers” and that it is “also easy to see how programs like Washington’s could do a poor job closing the access-to-justice gap.” Wright’s bottom line is to take a wait-and-see position: “Regardless, the LLLT program is an interesting approach to a real problem, and I’ll be watching to see what comes of it.”

From everything I’ve learned about this issue, it is clear to me that this is not about displacing lawyers. The magnitude of the A2J gap is so enormous that lawyers can never close it alone. There could never be a sufficient level of pro bono or reduced-fee services to meet the needs. Study upon study has concluded that 80 to 90 percent of low and moderate income people with legal problems are unable to obtain legal representation. That is an enormous problem.

You may have noticed that, even with a glut of lawyers, the problem isn’t getting fixed. The number of legal services jobs for lawyers has gone down in recent years, due largely to dramatic cutbacks in IOLTA funding. Lawyers in private-practice cannot both sustain a business and give away their services for free or at affordable rates.

In my ABA Journal article, New York Court of Appeals Chief Judge Jonathan Lippman makes this very point: “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.” Look, if lawyers were meeting this need, we wouldn’t be having this discussion.

Will They Make Things Worse?

In the second, Nonlawyer Legal Technicians: Access to Justice? Or Will They Make Things Worse?, Shannon Achimalbe, who is described as a former solo practitioner who decided “to sell out and get back on the corporate ladder,” devotes her post to addressing some of the complaints she has heard about the LLLT program.

Her first point is that lawyers shouldn’t worry about being displaced by non-lawyers because they wouldn’t want these clients anyway. A number of the people who fall into the A2J gap are “problem clients” who “have money problems because they refuse to lower their standard of living and try to abuse pro bono programs and legal aid clinics,” Achimalbe writes. She goes on to say that “some are pathological liars,” some “have unrealistic demands” and “refuse to pay unless a certain outcome is guaranteed,” and some are “venal” characters “who scammed people out of their money and spent it on luxuries, a Ferrari, and a lavish house.”

What? I don’t even know how to respond to that. Achimalbe is so far off the mark in characterizing the low- and middle-income people and small-business owners who are in need of legal services that I can’t even fathom where she got her ideas. All I can say in response is I recommend Achimalbe go spend a few months volunteering in a legal services program somewhere. If that would take her too far off the corporate ladder, then at least she should go speak to some actual legal services lawyers.

Her other points:

  • State bars should try to reform law schools to meet A2J needs. Achimalbe is correct that law schools could do more to address the A2J gap. The 2014 report of the ABA Task Force on the Future of Legal Education had many suggestions to this end (including that states should license non-lawyers to deliver limited legal services). As I said above, however, even if this happened, it would not be a sufficient response to address the full magnitude of the problem.
  • LLLTs may not be able to provide significantly cheaper service. This is a very real concern about the LLLT concept. In my ABA Journal article, USC law and economics professor Gillian K. Hadfield argues that the only way to make LLLTs economical is to have economies of scale, and the only way to do that is to allow private companies 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,” said Hadfield.
  • Clients will turn away from lawyers and hire cheaper LLLTs. The services an LLLT can provide are limited. In some cases, an LLLT will suffice, in many others, a lawyer will still be necessary.
  • LLLTs will raise prices and eventually stop taking low-income clients. In Washington’s program, there is no guarantee that LLLTs will charge affordable rates. They can charge whatever they want. Achimalbe says this means they may even charge the same rates as attorneys. If they do, they’ll be putting themselves out of business. Why would a consumer hire an LLLT over an attorney if the cost is the same? To be competitive, LLLTs will at the very least have to charge less than attorneys. Ideally, at least some of these LLLTs won’t be in private practice at all; they’ll be helping to staff legal services programs and enabling those programs to stretch their limited budgets that much further.

LLLTs are not the answer to the A2J crisis. But they could be part of the answer. If nothing else, Washington state should be commended for its willingness to experiment with alternatives.

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  • Other countries, such as the United Kingdom, do not regulate the provision of legal advice or legal document preparation and there is no evidence that are consumers are harmed by this practice. The Citizens Advice Bureau in the UK has employed non-lawyers to deliver legal advice and legal information to consumers successfully for many years.

    Why shouldn’t the provision of legal advice and legal document preparation by non-lawyers be de-regulated entirely?

    Legal document preparers in California often charge fees that are higher than lawyers, but are not permitted to provide legal advice, so their service is of less value. Where is the evidence that LLLT will be able to charge less legal fees than lawyers, particularly if they have the same overhead structure and the educational and licensing costs associated with licensure?

    If we are really serious about closing the A2J gap, more thought has to be given to structural change within the legal industry.

    Legal Service programs, which are law firms, are permitted to use non-lawyers in many support roles, provided they are supervised by lawyers.Many public legal service programs use trained paralegals to deliver legal services. Why shouldn’t these agencies be permitted to simply expand the role of non-lawyers to providing legal advice and legal document preparation without requiring formal licensure for a new role? I can see where the requirement for formal licensure creates another barrier to expanding the use of non-lawyers to assist the unrepresented.

    Why is the training of LLLT is the State of Washington being done by law schools? What do law school faculty know about the real practice of law? Is one of the purposes of this program to generate more revenue for law schools? Is this a good idea?

    Solos and small law firms are being disintermediated by online providers such as LegalZoom and other non-law firm providers. Isn’t it likely that LLLT’s will face the same competitive threats from non-lawyer, online providers, as solo and small law firm lawyers, and find it hard to compete in an industry that is experiencing disruption from multiple quarters?

    Experimentation is good, but not at the price of the time and expense that LLLT’s will invest in their career. I propose that if an LLLT successfully completes their program and becomes licensed, but can’t make a living as an LLLT they should receive a full tuition refund from the educational institution that they attended.

  • Jim M

    i am a civil trial lawyer with 40 years experience. I would support the idea with one caveat. These people are not well educated and will error more frequently than lawyers….to the client”s disadvantage.

    A mandatory requirement would be that such individuals must carry malpractice insurance to protect the clients from their predictable errors.

  • The problem is that allowing civilians to practice law is like backstreet abortions. Even if no law is passed, there will be people who practice law without a license, anyway. I mean, look at all the “paralegals” who fill out forms and consult with people at rates below what a sane attorney would work for. These “paralegals” don’t care if a law exists or not – they’re in it to make money and if someone loses a case because they received bad advice, oh well. Criminals don’t care about laws. The only care about not getting caught. This new law will only allow governments to legalize what is already going on and collect fees/taxes from these new civilian lawyers.

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