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.