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An American Bar Association task force has recommended that state regulators license people other than lawyers to perform certain legal services. In a recently released working paper, the ABA Task Force on the Future of Legal Education stated, “State regulators of lawyers and law practice should undertake or commit to … authoriz[ing] persons other than lawyers with J.D.’s to provide limited legal services and create certifications for such persons.”
 
The state of Washington has already begun to implement a program to license non-lawyers and California is considering doing so as well. A recommendation from the ABA that such programs be created could go a long way toward expanding this additional avenue of access to the legal system nationwide.
 
Of course, the release of a working paper is several steps removed from a nationwide change in policy. Even if these recommendations remain in the task force’s final report (due on November 20), there is no guarantee that the ABA House of Delegates will adopt it as ABA policy. Numerous consumer-friendly proposals about lawyer regulation have received strong support from ABA committees and task forces, only to be shot down by the House of Delegates. And even if the ABA endorses this proposal, each state will be free to accept or reject it in setting its own policy with regard to non-lawyer licensure. Local bars are sure to put up a strong fight over what they may see as non-lawyers infringing on the turf of lawyers.
 
Nevertheless, this is a significant development in the expansion of legal services to all Americans. If non-lawyers provide simpler legal services, the cost of those services will drop, potentially to a level where they would be affordable to the vast majority of people in this country who cannot currently afford legal help. If nothing else, the coalescing opinions on this point among a group of distinguished lawyers and judges shows how far the legal establishment has come. It appears that at least one segment of the legal establishment recognizes that it is irrational to continue the decades-old monolithic way of educating lawyers that produces newly-minted lawyers who are incapable of providing the legal services that most people need.
 
The recommendation that limited practice licenses be created is also only one of several dozen recommendations that the task force has put forward. On nearly all of the issues it addresses, the task force has made thoughtful recommendations that would, if followed, give the legal education system the room it needs to experiment with new models that can help both potential legal service providers and their clients.
 

 

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A working group of the District of Columbia Bar is proposing steps that will facilitate the provision of limited scope legal representation. Limited scope representation makes legal services more affordable to low- and moderate-income individuals, by allowing them to use a lawyer for smaller tasks such a one-time consultation or help with preparing a document. Though the DC Rules for Professional Conduct have allowed for limited scope representation since 1991, the current proposals will facilitate limited scope arrangements and will provide protections to consumers who may not have experience with using lawyers.

First, the working group is encouraging lawyers engaging in limited representation arrangements to get written consent from the client for the services that the client wants to seek out. Additionally, while limited appearances in court are expressly permitted in certain DC courts, such as in Family Court, the working group is pushing to have limited representation more explicitly permitted throughout the Superior Court. The working group is also recommending lawyer training on managing limited scope clients. Finally, the working group is recommending the creation of materials for limited scope representation, which would include model consent forms and informational brochures for consumers. More information can be found in this article.

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Sunday, 21 March 2010 20:00

Better living through the law

Right now, much of the country's attention is focused squarely on Washington DC and on healthcare reform. No matter your political opinion of the bill that just passed the United States House of Representatives late last night, one thing is clear: new laws regarding your healthcare are likely on their way. That bill (which can be downloaded in PDF format here) is very long, very complicated, and may change many things about the way you receive healthcare coverage. One thing is clear: having affordable access to legal services will be as important as ever.

The more the law changes and the more comprehensive and complicated it becomes, the more people without adequate access to the legal system risk being victimized by the law -- regardless of how well-intentioned those laws might be. In a recent national study conducted by The Legal Services Corporation, less than one in five of the legal issues facing low-income legal consumers ever receive attention from a private or legal aid attorney. The study concludes that a likely reason for this is that low-income legal consumers often don't realize the legal implications of some of the issues they face and therefore do not seek assistance, even in the rare instances when it may be accessible to them.

As you find yourself adrift in a sea of political rhetoric about healthcare reform, don't forget that access to your legal rights can have every bit as much an effect on your life and your health as access to healthcare. So get engaged in the process of reforming the legal system. After all, while healthcare laws may be about to change, the unmet needs of legal consumers remains sadly constant. And whether you have to fight an insurance company, a doctor, or the Government, or even if you just need to know how the new laws may affect you; having access to effective and affordable legal services may be just what the doctor ordered.

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The ABA's Ethics 20/20 Commission has released its preliminary recommendations on alternative business structures for legal practices. Regrettably, as they promised in their earlier issue paper on this topic, they have not considered meaningful reforms such as allowing outside investment, which would allow innovation in the delivery of legal services that could benefit consumers. Instead, they have recommended  merely a modified version of the District of Columbia's existing rule on this issue.

The panel's recommendation would only allow minority investment from other professionals who take an active role in a law practice. The proposal does not even allow true multidisciplinary practice, where lawyers and other professionals work side-by-side to serve customers with a range of legal and non-legal needs.

American Lawyer has an article on the new recommendations, quoting Responsive Law's Tom Gordon. To see our original comments to the ABA, click here.

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Mark Childress was sworn in yesterday as the White House's Access to Justice Advisor, succeeding Laurence Tribe, who left last fall due to health problems. The Washington Post describes Childress as a "savvy Washington operator" who played a major behind-the-scenes role in the enactment of health-care reform and in handling federal judicial nominations. While Professor Tribe has left some large shoes to fill, we are pleased that the administration has chosen a serious political player as his replacement. We hope that Childress will quickly put those skills to use on behalf of the majority of Americans who lack meaningful access to the legal system.

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Wednesday, 20 June 2012 20:00

Washington to Allow Non-Lawyer Providers

 

On June 15, 2012 the Washington Supreme Court adopted a groundbreaking rule which will allow consumers to use non-lawyers with certain training and education to provide technical help on simple legal matters. This Limited Practice Rule for Limited License Legal Technicians (“LLLT”) will be effective September 1, 2012 and is a monumental step toward increasing access to justice for Washingtonians.  The purpose of the rule is to authorize certain persons to render limited legal assistance or advice in approved areas of law.

This rule was a product of the Washington Practice of Law Board, which was created to handle unauthorized practice of law (“UPL”) complaints. In other states, UPL committees are dedicated to defining and investigating complaints for UPL. Such investigations often cause more harm than good to consumers, as they sweep up useful service providers alongside fraudulent ones. However, rather than blindly cutting off non-lawyer services for consumers, this UPL committee focused on finding ways in which access to law-related services can be improved by allowing consumers to use well-regulated non-lawyer professionals.

While some of the specifics regarding Limited License Legal Technicians are still being worked out, there are some guidelines that the Washington Supreme Court has already outlined.  LLLTs must:

  • Pass a moral character and fitness test;
  • Have an associate’s or bachelor’s degree in paralegal/legal assistant studies with a minimum of two years’ experience as a paralegal/legal assistant doing substantive law-related work under the supervision of a lawyer (at least one year of that under a Washington lawyer) or have a post-baccalaureate certificate in paralegal/legal assistant studies along with three years of experience as a paralegal/legal assistant doing substantive law-related work under the supervision of a lawyer (at least one year of that under a Washington lawyer);
  • Complete 20 hours of pro bono legal service in Washington within two years of taking the LLLT exam;
  • Successfully pass the LLLT exam;
  • Show ability to meet financial responsibilities;
  • Have a physical address in Washington;
  • Create a written contract which describes their services and fees;

After an individual meets all of those requirements for an LLLT they will then be authorized to engage in tasks previously allowed only by attorneys. This is a great development because prior to this rule, these tasks, most of which are basic, have been monopolized by the legal profession but can be competently done by well trained and educated individuals for a fraction of the cost of hiring an attorney. 

Some of the tasks which LLLTs will be able to engage in under the new rule are:

  • Explaining facts and relevancy to their clients;
  • Selecting and completing court forms;
  • Informing clients of applicable procedures and timelines;
  • Reviewing and explaining pleadings;
  • Identifying additional documents that may be needed in a court proceeding; 
  • Providing the client with self-help materials approved by the Board or prepared by a Washington state lawyer;
  • Performing legal research and writing legal letters and documents, but only if reviewed; by a Washington lawyer;
  • Advising the client about other needed documents;
  • Assisting the client in obtaining needed documents;

This model also improves upon that of California, which along with Arizona is the only state to license and regulate legal technicians. California currently licenses legal document assistants (http://www.calda.org/ContinuingEducationCodes.asp) (LDAs) to help consumers with legal document preparation.  However, California LDAs are forbidden from offering legal advice, discussing legal strategies, answering legal questions, or selecting forms for the consumer. Therefore, in California, LDAs can be prosecuted for UPL if they advise clients on something as essential as determining which legal forms need to be completed.        

Under the Limited Practice Rule, Washingtonians will have access to a broader range of services from LLLTs than Californians can receive from LDAs. The ability for LLLTs to be able to advise clients on a broader range of tasks, such as which forms are appropriate, will make the program more dependable to consumers.  For example, if a Californian goes to an LDA with a form that is inappropriate for the task at hand, the LDA may not correct them and suggest the correct form. In Washington, the LLLT can correct obvious consumer mistakes such as this.

Allowing access to LLLTs will also allow legal services organizations in Washington to save money and serve more people with complex legal needs, since LLLTs can alleviate many of the simpler legal issues before legal services agencies. Moreover, courts will benefit by facing more knowledgeable self-represented litigants who have filed the correct paperwork and who will be better prepared for the court hearing, resulting in less rescheduling of court dates and less need for judges to explain court processes to litigants. 

With LLLTs being able to handle more basic legal services, consumers will have a greater ability to save money by unbundling legal services. For example, a person with an uncontested divorce could use an LLLT for the majority of the paperwork, such as division of property issues, but might consult a lawyer for more complicated parts of the divorce, such as child custody.  

If Washington continues to execute the licensing and regulation of LLLTs smoothly, and other states follow Washington’s lead, this could be one of the greatest advances for consumers of legal services since the U.S. Supreme Court outlawed mandatory fee schedules in Goldfarb v. Virginia State Bar in 1975.

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Michael Frisch of Georgetown Law Center has just written an outstanding and frightening post about an attempt by the District of Columbia Bar to quietly takeover control of the budget for the District's bar discipline office from the D.C. Court of Appeals. Taking over the budget for discipline would mean that lawyers would exercise financial control over its own prosecution for disciplinary violations. Professor Frisch calls this "the most dangerous idea in the history of the D.C. Bar." From a consumer perspective, it's hard to disagree.

An inherent problem of self-regulation of any profession, including law, is that practitioners may act in the best interests of their guild, rather than in the best interests of the public. There are many areas where this takes place in the regulation of the legal profession. For example, restrictions on who may provide law-related services, such as document preparation, are justified by the bar as consumer protection measures, but act primarily to prevent consumers from having access to low-cost, non-lawyer service providers who, not surprisingly, might be in direct competition with lawyers.

In disciplinary matters, the bar generally argues that outside regulation is unnecessary because it can act on its own to protect consumers from lawyers who act against their clients' interests. The problem with this argument is that most lawyer disciplinary systems are already weak, administering meaningful discipline in less than two percent of all complaints they receive. Taking away budgetary independence of bar counsel's office will further handcuff the many dedicated lawyers who are trying to police the profession on an already limited budget. Furthermore, it completely undermines the argument that the bar is capable of regulating itself.

I've only been a D.C. bar member for about half as long as Professor Frisch, so I don't have the historical knowledge to confirm his claim that this is "the most dangerous idea in the history of the D.C. Bar," but it would take a remarkably bad idea to top it.

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