Of the nine candidates in Washington state who took the licensing exam to become the nation’s first-ever limited license legal technicians (LLLTs), seven passed and will now have their names submitted to the Supreme Court of Washington for the court to issue an order granting their admission to practice.

This historic program seeks to help bridge the access-to-justice gap by licensing non-lawyers to provide legal advice and assistance in limited areas without the supervision of a lawyer. I wrote about the program in January for the ABA Journal and later for the Washington Post.

Michelle Cummings, the LLLT candidate who I featured in the ABA Journal piece, is among the seven who passed the exam. They all passed both a professional responsibility exam and a domestic-relations practice area exam. The full list of those who passed is:

  • Leisa Bulick, White Salmon, WA.
  • Christine Carpenter, Auburn, WA.
  • Michelle Cummings, Auburn, WA.
  • Kimberly Lancaster, Shoreline, WA.
  • Melodie Nicholson, Auburn, WA.
  • Priscilla Selden, Entiat, WA.
  • Angela Wright, Granite Falls, WA.

Fifteen candidates had completed the coursework to become LLLTs. Nine of them took the exam.

The candidates must still complete additional steps, according to the Washington State Bar Association’s LLLT website. They must provide proof that they have the required 3,000 hours of supervised experience and that they have insurance and have set up trust account reporting. They also must pay a licensing fee and take an oath administered by the court.

The Supreme Court of Washington has approved revisions to the Rules of Professional Conduct governing lawyers in that state that allow lawyers and limited license legal technicians to form partnerships and share fees. To my knowledge, this makes Washington the first state to allow fee sharing and joint ownership of a law practice between a lawyer and nonlawyer. (The District of Columbia also allows ownership and fee sharing by nonlawyers in limited circumstances.)

The new Washington rule was part of a package of changes to the Rules of Professional Conduct (RPC) proposed by the Washington State Bar Association to bring the rules into alignment with the LLLT program and to provide guidance to lawyers concerning their interactions with LLLTs and the clients of LLLTs. LLLTs are subject to a separate set of professional conduct rules.

(I’ve previously covered the LLLT program in in articles in the ABA Journal and The Washington Post.)

New RPC 5.9, titled “Business Structures Involving LLLT and Lawyer Ownership,” provides that a lawyer may:

  1. share fees with an LLLT who is in the same firm as the lawyer;
  2. form a partnership with an LLLT where the activities of the partnership consist of the practice of law; or
  3. practice with or in the form of a professional corporation, association, or other business structure authorized to practice law for a profit in which an LLLT owns an interest or serves as a corporate director or officer or occupies a position of similar responsibility.

The rules specify that a lawyer may not share fees with an LLLT who is not part of the same firm. Rule 5.9 goes on to say that joint ownership is permitted only if:

  1. LLLTs do not direct or regulate any lawyer’s professional judgment in rendering legal services;
  2. LLLTs have no direct supervisory authority over any lawyer;
  3. LLLTs do not possess a majority ownership interest or exercise controlling managerial authority in the firm; and
  4. lawyers with managerial authority in the firm expressly undertake responsibility for the conduct of LLLT partners or owners to the same extent they are responsible for the conduct of lawyers in the firm.

The comment to the new rule explains:

This Rule authorizes lawyers to enter into some fee-sharing arrangements and for-profit business relationships with LLLTs. It is designed as an exception to the general prohibition stated in Rule 5.4 that lawyers may not share fees or enter into business relationships with individuals other than lawyers.

Other approved changes to the RPC address additional aspects of the relationship between lawyers and LLLCs. In the RPC’s preamble, a new comment 24 explains:

In addition to providing standards governing lawyer conduct in the lawyer’s own practice of law, these Rules encompass a lawyer’s duties related to individuals who provide legal services under a limited license. A lawyer should remember that these providers also engage in the limited practice of law and are part of the legal profession, albeit with strict limitations on the nature and scope of the legal services they provide.

New rule 5.10 addresses the obligation of lawyers to supervise LLLTs who they employ or retain. It provide that lawyers must make reasonable efforts to ensure that LLLTs in the firm will act in ways that are comparable with the professional conduct rules and with the professional obligations of the lawyer.

The Supreme Court of Washington approved the changes in an order issued on March 23. I have not been able to find the order online. The packet of changes that was submitted to the court can be found here and the WSBA’s cover sheet explaining its proposed changes can be found here.

I have been closely following the emerging issue of licensing non-lawyers to deliver legal services in limited circumstances. In the January 2015 ABA Journal, I had an article about Washington state’s limited license legal technician (LLLT) program, and last weekend I had an opinion piece in The Washington Post about the same topic.

Gradually, other states are moving towards adopting programs similar to Washington’s. A few weeks ago, I noted here that an Oregon State Bar task force on limited license legal technicians issued its report recommending to the OSB’s board of governors “that it consider the general concept of a limited license for legal technicians as one component of the BOG’s overall strategy for increasing access to justice.”

Now, in California, the State Bar’s Civil Justice Strategies Task Force has published for public comment a draft report that calls for a LLLT pilot program in that state.

As I noted in my ABA Journal article, the State Bar in March 2013 appointed a Limited License Working Group to look at whether California should adopt a program similar to Washington’s. In July 2013, the working group came out in favor of the concept and urged the bar to conduct an expanded study.

In November 2013, the bar appointed the Civil Justice Strategies Task Force to study the access-to-justice crisis and develop an action plan for addressing it. Earlier this month, the Task Force released the draft of its report and published it for public comments.

Among the recommendations included in the report is to establish a pilot LLLT program:

Limited License Legal Technicians (LLLT): The State Bar should study the design of a pilot program, in one subject matter area, and, with input from the Supreme Court, address how the governance, oversight, and “licensing” would be handled. It is important to allow the time for the Court to have input at the early stages, rather than after design is complete.

Another recommendation is to use non-lawyers as court navigators, based on the New York program I described in the ABA Journal piece:

Navigators: A program should be designed to be piloted in one or more self-help centers, to provide volunteer assistance to self-represented litigants in attending hearings. Permission should be requested to have the navigator sit at counsel table 19 with the litigant, but not to address the court. Based on experience in other jurisdictions, the focus should be on this as a volunteer program, not as a for-profit method of assistance.

Comments are being accepted until May 11, 2015.

 

Michelle Cummings will soon take the LLLT exam in Washington.

In the January 2015 issue of the ABA Journal, I had an article about Washington state’s limited license legal technician (LLLT) program, which will formally license non-lawyers to deliver legal services in limited circumstances independently, without a lawyer’s supervision. The article also discussed New York’s program of court navigators and reported on other states considering programs similar to Washington’s, including California and Oregon. Since that article came out, there have been three notable developments.

Oregon Task Force Calls for Legal Technicians

In the ABA Journal piece, I noted that the Oregon State Bar had convened a Task Force on limited license legal technicians in 2013 and that its final report was expected soon. On Feb. 13, the Task Force issued its report. In it, the Task Force recommended to the OSB’s board of governors “that is consider the general concept of a limited license for legal technicians as one component of the BOG’s overall strategy for increasing access to justice.” The report noted that a large majority of the Task Force members — but not all of them — concurred in the recommendation.

Should the Board decide to proceed with this concept, the Task Force recommends a new Board or Task Force be established to develop the detailed framework of the program. For the reasons set out herein, the BOG should review the recently established Washington State Bar Association LLLT program and consider it as a potential model.

The report praised the Washington LLLT program as “comprehensive and well thought-out” and urged the OSB, should it decide to proceed with a legal technician program, to “review, consider and learn from Washington’s program.”

The Task Force further recommended that the first area to be licensed be family law, including guardianship. (Washington also designated family law as the first area to be licensed.) The Task Force found that 86 percent of all family law litigants in Oregon are self-represented. In 1992, it noted, that figure was just 38 percent.

Lippman Calls for Non-Lawyer Legislation in New York

The ABA Journal piece also discussed New York’s navigator program, in which nonlawyers provide free assistance to unrepresented litigants in certain housing and consumer debt cases. The program was spearheaded by New York Court of Appeals Chief Judge Jonathan Lippman. Now, Lippman says that the program has been so successful that he will introduce legislation calling for a further level of involvement by non-lawyers in assisting litigants.

In his 20015 state of the judiciary address, which he delivered Feb. 17, Lippman said:

I am pleased to announce today, that I intend to introduce legislation this year that calls for a further level of involvement by non-lawyers in assisting litigants. This proposal would codify a more substantial role for non-lawyers by establishing a category of service providers called “Court Advocates” in Housing Court and in consumer credit cases to assist low-income litigants.

While there is no substitute for a lawyer, the help of a well-trained non-lawyer standing by a litigant’s side is far preferable to no help at all. We have already seen what a difference it can make.

Lippman noted that New York’s Committee on Nonlawyers and the Justice Gap had recently completed a report on the navigator program and had concluded that it demonstrated “a marked difference in the behavior of litigants accompanied by Navigators — a greater ability to more clearly set out the relevant facts and circumstances and a significant increase in use of relevant defenses for those litigants.”

Washington Delays First LLLT Exam

My ABA Journal story said that Washington’s first class of LLLT applicants would sit for the licensing exam in March. That has been delayed. No date has been finalized, but the exam is now expected to be held sometime in late April or early May, according to Thea Jennings, the Washington State Bar Association staff member who helps administer the LLLT program.

The reason for the delay, Jennings said, is that the LLLT board is waiting for the Washington Supreme Court to vote on proposed amendments to the LLLT rules that would alter the exam requirements. The amendments would allow an LLLT applicant to satisfy the core examination requirement by passing the National Federation of Paralegal Association’s Paralegal Core Competency Exam. The amendment would also make the ethics portion of the exam a separate, one-time exam, graded separately from the practice area exam.

Michelle Cummings, the LLLT applicant I profiled in my ABA Journal piece, told me last week that she and other LLLT applicants have been meeting in a study group virtually every week for the past two months, preparing for the exam. Recently, the applicants were given a study guide by the LLLT board, which is helping them better focus their preparations.

 

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.

Michelle Cummings is on track to be one of Washington’s first LLLTs.

In March, Washington state’s first class of limited license legal technicians will sit for a licensing exam. Those who pass will be licensed by the state to provide legal advice and assistance to clients in domestic relations without the supervision of a lawyer. Over time, Washington plans to license LLLTs in other practice areas as well.

And Washington is not alone. In New York, nonlawyer “navigators” assist unrepresented litigants in housing and consumer debt cases. In California, the state is consider adopting a program similar to Washington’s, and several other states are studying the issue. Even the ABA’s newly appointed Commission on the Future of Legal Services is expected to consider non-lawyer practice.

All of these initiatives are in response to what many perceive as a crisis in meeting the legal needs of low and moderate income individuals across the United States. Advocates say it is a crisis that lawyers alone — no matter how much pro bono they do — could ever resolve.

If this interests you, check out my report in the latest issue of the ABA Journal that explores this phenomenon in depth: Washington state moves around UPL, using legal technicians to help close the justice gap.

 

The ABA Journal has added new features to its Web site and also has moved into the social networking sphere. New features announced this week are:

  • Blawg search. The magazine has partnered with Justia.com to create a search engine covering all of the 1,800-plus blogs listed in its directory. Access it by using the search box that appears at the top of all of the site’s pages.
  • News widget. Use the widget to add the ABA Journal news feed to a blog or Web page.
  • Twitter feed. Integrate the magazine’s headlines into your own Twitter page by visiting its Twitter page and clicking “Follow.”
  • Facebook page. Got Facebook? If so, become a “fan” of the ABA Journal by visiting its Facebook page.

For an article I am writing, I am looking to hear from legal professionals about their experiences with LinkedIn. In particular, I would love to hear from anyone whose participation in LinkedIn brought them new business or opened doors to other beneficial opportunities. I also want to hear from any longtime users of LinkedIn who have seen little or nothing come of it. If you have a story to share, send me an e-mail at ambrogi-at-gmail.com.