Monday, April 20, 2015

On the possibility of allowing legal professionals without JDs to provide limited legal services

A few days ago I posted a note about developments in Washington state's program to allow certified paralegals to provide certain limited legal services without attorney supervision.  However, I don't think I provided enough background on this very interesting issue.  So, here is a longer post with more information (which also incorporates the previous post).

While some jurisdictions are debating issues related on how to practice law, one of the more interesting debates that will likely become a national debate soon relates to who can practice law.

As is well known to anyone interested in professional responsibility issues, a large number of people don’t have access to legal representation even if there are enough lawyers to provide help. Not surprisingly, a number of companies have tapped into this need and created new forms to provide legal services.  This type of legal services help, however, is also limited.  Companies like LegalZoom, for example, can provide legal forms and instructions on how to create legal documents, but can’t provide lawyers to provide legal advice because of rules that ban relationships between lawyers and non lawyers.  And, even if it does not violate those rules, LegalZoom has been accused of practicing law illegally in some states.

In response to the issues, some jurisdictions have started what could be a significant shift in the way legal services are provided in the US by addressing who can provide them.  The leader has been the state of Washington which, in 2012, approved a plan to allow certified legal technicians (referred to as “Limited License Legal Technicians” or “LLLTs”) to provide limited legal services without the need of supervision by attorneys.  The program has attracted the attention of other states and of the ABA, whose commission on legal education has urged states to provide licenses to practitioners without a juris doctor to provide limited legal services. 

According to the rules adopted in Washington, the LLLT program will be supervised by a Board appointed by the Supreme Court of the state and the LLLTs will be required to take (and pass) a specific academic program, at least part of which will be taught by the state’s law schools.  Additionally, LLLTs will have to pass an exam designed to test their competence in the area of law in which they will be providing services.  As of now, that area of law is limited to family law, but it is quite possible the rules will be amended to open the practice to more topics. 

LLLTs will be allowed to help clients review and prepare legal documents and forms, and discuss legal procedure but will not be allowed to represent clients in those procedures or in negotiations with other parties.  You can take a look at the new Washington rules here.

Having, in essence, created a new legal profession, the Washington Supreme Court more recently took its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals.  This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms.  The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.

The program is already considered the example to follow and it has been reported that California might be the next state to adopt a similar approach.  Likewise, a commission in Oregon has already submitted a proposal and the idea is being considered by commissions or other groups in Connecticut, Massachusetts Vermont and New York.
Although there are certain types of legal services that are probably better left for attorneys, I have no doubt that programs like the LLLT program in Washington are a good idea.  It may provide access to legal services to a large section of the population that may not have access to them now; and it may do so at a lower cost.  Some have compared the program to the now common practice of providing access to medical care by nurse practitioners in drug store walk-in clinics, which provides access to basic medical care at a lower cost.  Presumably, if we can rely on nurse practitioners to provide basic medical care, we can rely on certified legal professionals to provide limited legal services.

That is not to say, however, that there aren’t uncertainties.  It is not clear, for example, whether the required course of study will be enough to prepare the LLLTs to handle the client’s problems.  After all, it is not unusual for family law issues to be complicated with matters related to other areas of the law.  Also, given economic factors, and the fact that many lawyers are underemployed, it is not clear that the services will be provided at a significant discount.  These are all things that remain to be seen, and that, I am sure will be addressed as needed in the future. 

What should be clear at this point, though, is that in the near future there will be many changes that will affect both how the law is practiced and who can provide legal services.

No comments:

Post a Comment