Washington State Bar proposal to allow non-lawyer owned entities to provide some legal services in the state

The Washington State Bar Association and a board created by the Washington Supreme Court have presented a proposal that, if approved by the Washington Supreme Court, would allow nonlawyer-owned entities to deliver legal services.

If the Washington Supreme Court gives its approval, nonlawyer entities could apply to offer legal services temporarily under an exemption to rules banning the unlicensed practice of law, according to a summary (here) on the Washington State Bar Association’s website.

The ABA Journal has more on the story here.

Washington considering following Utah and Arizona in allowing "alternative business structures" for the practice of law

As posted in the Washington Bar Association's website:  

As proposed, the pilot program on entity regulation would allow entities to provide legal and law-related services in Washington under time-bound, limited exemptions from the otherwise applicable rules and statutes governing entities practicing law. If approved by the Court, among U.S. jurisdictions, Washington would follow only Utah and Arizona in executing a plan to determine how the delivery of legal services by entities can be regulated in a manner that protects consumers and promotes broader access to legal services. Under the proposal, participating entities would be required to abide by a Supreme Court authorizing order detailing conditions on their participation, including adherence to rules of ethics and regular reporting of data and information relating to their delivery of services to the public.

You can provide feedback to the WSBA and Practice of Law Board during the next Board of Governors meeting Sept. 6-7 or via email at entityregulationpilot@wsba.org.

Go here for more information.

Washington's Supreme Court Approves Three Ways To Skip The Bar Exam - Updated

March 20, 2024

The ABA Journal and Above the Law are reporting that the Washington Supreme Court has adopted alternative pathways to a law license, becoming the second state to do so in a little more than four months. The court approved three ways to bypass a bar exam, with different standards for law school graduates, law students and law clerks participating in a lawyer-tutoring program already in existence. All involve apprenticeships or internships.

You can read the different standards in the court's press release here.  The ABA Journal has more details here.  Above the Law has the story here.

UPDATE (April 13, 2024): Lex Blog has published a comment on the story here.

Oregon State Bar proposal would permit paralegals to represent clients in landlord/tenant and family law cases

The Oregon State Bar recently announced it is considering a proposal to approve a program for what it will refer to as "Licensed Paralegals," akin to the groundbreaking (but recently abandoned) LLLTs program in Washington state.  

The proposal in Oregon would allow paralegals to represent clients in certain family law matters and in landlord/tenant disputes.  The idea behind the program is familiar:  most people don't have access to legal representation and it should be possible for paralegals to provide some services, just like a nurse practitioner provides some health services, in order to lower costs and enhance access to representation.  The Bar explains the principle in a short video available in its website. 

The website also offers copies of the Board of Governors report that suggests the adoption of the proposal (here) and a more detailed summary of the program here.

Podcast on the termination of Washington's pioneering LLLTs program

At a time when several states are trying to adopt regulatory reforms to try to provide better access to legal services (see here, here and here), as I reported here, the Supreme Court of Washington decided to terminate its LLLT program.  It was the first in the country to regulate a system to allow non-lawyers to provide some legal services.

As you probably know, not everyone agrees that eliminating the program was a good idea, and yesterday Above the Law published a story reporting that the editorial board of the Seattle Times seems to be trying to put some pressure to get the program restored.  Take a look at the story here.

Also, there is a new podcast discussing the program and its termination in the Legal Talk Network.  You can listen to it by using the play button below or by going here.

Washington State (prospectively) terminates its pioneering program of non-lawyer technicians (LLLTs)

Long time readers of this blog will remember that I have posted many comments about or related to Washington's program that allows non-lawyers to provide certain limited legal services.  When it was created, it was the first of its kind and was widely celebrated as a good idea that would facilitate access to legal services and therefore help "bridge the gap" between available legal services and unmet legal needs.  It was expected to grow over time and since its creation, several other states adopted similar models.

So, I am not happy to report that in a surprise move (at least to me), the Washington Supreme Court has decided to terminate the program.  Or, maybe "terminate" is not the right word because current legal technicians in good standing may continue to be licensed and may continue to provide services. Individuals already in the pipeline as of June 4, 2020, who can complete all the requirements to be licensed as a LLLT by July 31, 2021, may do so. No new LLLTs will be admitted after that date.  The ABA Journal has more details on the story here.

In a very short letter to the director of the program, the Chief Justice of the state supreme court explained that

The LLLT program was created in 2012 as an effort to respond to unmet legal needs of Washington residents who could not afford to hire a lawyer. Through this program,  licensed legal technicians were able to provide narrow legal services to clients in certain family law matters. The program was an innovative attempt to increase access to legal services. However, after careful consideration of the overall costs of sustaining the program and the small number of interested individuals, a majority of the court determined that the LLLT program is not an effective way to meet these needs, and voted to sunset the program. 

I am disappointed that the program did not survive.  I am now even more interested to see how similar programs do in other states.  I am also curious to see if Washington will try to come up with an alternative.

The vote to end the program was not unanimous and in a separate letter, Justice Barbara A. Madsen said that she “passionately” disagreed with the court’s vote stating that "[t]he elimination of the LLLT license, which was created to address access to justice across income and race, is a step backward in this critical work. It is not the time for closing the doors to justice but, instead, for opening them wider.”  You can read the full letter here.

LawSites has a comment here.

Wisconsin: mandatory bar membership is not unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. 

Today I am here to report that we now have a decision on the subject.  About two seeks ago, the State Bar of Wisconsin won dismissal of a suit alleging its requirement that attorneys pay bar dues to practice in the state unconstitutionally compels them to participate in the state bar’s advocacy.  The case is called Jarchow v. State Bar of Wis. and you can read it here.

Rather than address the issues head on, however, the court held that U.S. Supreme Court precedent requires dismissal of the plaintiffs’ First Amendment challenge. It cited a 1990 opinion in which the high court upheld similar requirements imposed by the California bar against free speech and free association challenges.  The trial court said it’s bound by the 1990 decision, and only the Supreme Court can say otherwise. “Plaintiffs must seek relief in a higher court,” it said.

Comment on programs that allow non lawyers to provide legal services

Long time readers of this blog know I have posted many stories on efforts around the country to provide more access to legal services, particularly by allowing non lawyers to provide some of those services.  A couple of states have implemented new rules to provide licensing to so called "Limited License Legal Technicians" (LLLTs) who are now allowed to provide legal services without the supervision of a lawyer in limited types of cases.  For some of my posts on this go to the section on innovation or the section on regulation.

I am writing about this today because the Institute for the Advancement of the American Legal System has posted a comment on the programs and proposals that allow (or would allow) non lawyers to provide legal services in order to improve access to legal services. 

Among other things, the author points out that although LLLT programs are good in theory, some argue they have proven to be a failure because they have not reached the people it was designed to reach, which has been a lingering argument against them since they were first proposed many years ago in Washington state.

Hopefully, however, we will have some actual data we can use to reach a conclusion on this argument.  The National Center for State Courts (NCSC) will soon begin a year long process to evaluate Washington state’s LLLT program. Although the program has been around for five years, it’s only been in the last few that NCSC has begun looking at its efficacy.  This upcoming comprehensive review aims to determine, among other things if LLLTs are adequately trained, and if they’re meeting the needs of their clients.

The most important thing it should try to determine is whether the program has resulted in making legal services more accessible and affordable. 

Update on challenges to mandatory bar association membership around the country

As I have written before, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback.  At one point I think I labeled it the "hot issue" of the year because I kept seeing reports of lawsuits being filed around the country.

A few days ago, a decision from the 8th Circuit may have slowed down the trend a bit (in a case originating in North Dakota), but there are still a bunch of cases pending out there.  At last count, there were challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.


Thanks to Mauricio Hernandez for the update and links.

Washington State Bar Association rejects proposal to require lawyers to carry malpractice insurance

Not long after the State Bar of California’s board decided against requiring lawyers to carry malpractice insurance, the Washington State Bar Association’s board has rejected a similar recommendation.  Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.

The task force that studied the issue in Washington had concluded that the lack of an insurance requirement “poses a distinct risk to clients.”  Yet, the Board voted down the proposal.

One of the reasons behind the decision was the concern that a malpractice insurance requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance. 

Above the Law has more on the story here.

Should legal technicians be allowed to represent clients in courtrooms

A few years ago, Washington state made news by approving a program to recognize licensed limited legal technicians (LLLTs) who would be allowed to provide limited legal services to clients.  Since then, other jurisdictions have been working on approving similar programs.

The program has not generated the results many expected.  There were problems with the direction of the program itself, and so far only 30 people have become LLLTs.

In addition, the original program, however, did not allow the LLLTs to represent clients in courts.  This decision limited one of the goals of the program which is to provide access to legal representation to those who don't have access to it.

Thus, it can be argued that there is an inherent contradiction in a system that seeks to increase access to legal services but that also limits the participation of LLLTs in that representation. 

Here is a recent article addressing this issue, which argues that LLLTs should be allowed to represent clients in the courtroom.

Legal Talk Network: Podcast on Limited License Legal Technicians

Long time readers of this blog will remember the debate on whether non lawyers should be licensed to provide limited legal services and how Washington state became the first jurisdiction to recognize Limited License Legal Technicians (LLLTs).  See here, here, here and here, for some of my posts on this starting back in 2015.  Go here for a 2017 podcast on the subject.

Last week, the Legal Talk Network published a new podcast on the subject.  You can access it here.

Article on unauthorized practice of law and the possibility of providing access to legal services by recognizing limited legal technicians

Long time readers of this blog are familiar with the on-going debates on whether non lawyers should be allowed to provide some types of legal services.  As you recall, Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012.  Other states have had similar discussions.  For some posts on this topic go here, here, here, and here.  And, one controversial part of the discussion is whether the resistance from some lawyers, and bar associations is based on protectionism rather than on a concern for the public.  See here, for example.

A few days ago, the ABA Journal online published a short article on this topic called: "When UPL accusations against lawyer paraprofessionals are just protectionism."  Its conclusion:  "It’s time to embrace alternative delivery by removing barriers masquerading as ethical issues or provider ability accusations and refocus the discussion on client demand, not attorney supply."

Podcast: On being a Limited License Legal Technician in Washington State

In an effort to provide better access to legal services, back in 2012 Washington became the first state to adopt rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians (or LLLTs).   Go here for some background.

Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia— created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.”  However, the development of programs in those, or other, states has not been as successful as once expected.

A few days ago, Lawyerist posted a podcast with Laura Genoves about being one of the first Limited Licensed Legal Technicians in Washington State and the differences between a legal technician and a practicing attorney, including everything from education costs to how each can practice.   If you can't see the controls below, you can listen to the podcast by going here.

Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer

Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.

Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.  The case is called Piris v Kitching and you can read the opinion here.  The Legal Profession blog has more details here.

One Justice dissented in Piris, making what I think is a persuasive argument.  Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.

Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...

In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct.  Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway.  The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority.  I agree with the dissent in this case.  This view is not justified.  It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client.  I don't see why it makes sense to give the attorney such a free pass.

Nearly all members of the Washington Practice of Law Board resign accusing the Washington State Bar Association of systematically undermining the Board's mission

As I have argued before, the "hottest" issue in professional responsibility today is the notion of "innovation" which is shorthand for a discussion on new approaches to providing legal services.  And one of the most important recent developments on the subject was the approval of a proposal in Washington state to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs).  I discussed this development here and here. 

By taking this approach, Washington state became the leader in the discussion of innovative ways to provide access to legal representation.  Yet, it appears this came at a cost, and that things are not running as smoothly as I thought.

Last month, nearly all members of the Washington Practice of Law Board resigned accusing the Washington State Bar Association of systematically undermining the Board's mission.  The resigning members sent a letter to the Washington Supreme Court detailing their concerns in which they state that "the Washington State Bar Association has a long record of opposing efforts that threaten to undermine its monopoly on the delivery of legal services" including the fact that "[t]he Washington State Bar Association opposed the Limited License Legal Technician Rule..."  You can read the full letter here.  It ends by stating that "[t]he treatment of the Practice of Law Board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers ..."

The Washington State Bar Association has replied that the letter contains “significant misinterpretations and misunderstandings” and that “[a]ccess to justice and the protection of the public are unwavering commitments shared by the Washington Supreme Court and the Washington State Bar Association.”  Lawyerist and the ABA Journal have the story here and here.

The assertion that the Bar Association has tried "to protect its monopoly on the delivery of legal services" is not surprising in the sense that that has always been part of the debate on issues of innovation.  A lot of the recent discussion on innovation deals with opening the doors to the market of legal services to non-lawyers and it is not uncommon to hear the accusation that lawyers try to keep the doors closed in order to protect their control on the market. 

I don't have any information to know whether this accusation is true or accurate when it comes to the Washington Bar Association, but it is a common argument with the larger debate on how to make legal services more accessible, more affordable though innovation.

As you probably know, the ABA has created a Commission on the Future of Legal Services to study these issues. 

Washington State Supreme Court approves rules to allow lawyers to share fees with non lawyer legal technicians

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.

Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012. 

Having, in essence, created a new legal profession, the Washington Supreme Court has now taken 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.

You can take a look at the new Washington rules here.  For comments on the new rule allowing lawyers to share fees with non lawyers go to LawSites and Bloomberg law.

This is a major development for the future of legal services and it will surely not be the last.  I think more states will follow suit (several other states, including New York and California are working on similar proposals) and soon we will have a broader market for legal services that will include both lawyers and non lawyers.  For a comment on the future of the legal services profession you can read a good paper by Prof. Andrew Perlman (Suffolk) here.