“[Legal technicians] offers a sound opportunity to determine whether… the involvement of effectively trained, licensed and regulated non-attorneys may help expand access to necessary legal help…”Washington State Supreme Court
Washington State has passed, and at least one other state is considering, programs that authorize non-lawyers who have been certified by the bar to provide specific legal services within designated areas of law. The primary driver behind the authorization of these new, non-lawyer providers is to find a way to help lower the cost of legal services, given that our civil legal system is unaffordable to low income individuals and is cost prohibitive to those of moderate income.
Washington’s program is known as the Limited License Legal Technician Rule and the first approved practice area for legal technicians in Washington is family law. The initial licensing examinations for family law legal technicians is anticipated to take place next spring.
The requirements for applicants include having an associate’s degree or higher, 45 hours of approved instruction in paralegal studies at an ABA approved paralegal education program, 15 credits of family law specific courses to be taken in a curriculum developed by an ABA-approved law school, be of good moral character, pass two bar examinations, and acquire 3,000 hours of substantitive law-related work experience supervised by a Washington lawyer.
Once an individual has been licensed, they are authorized to:
(1) Obtain relevant facts, and explain the relevancy of that information to the client.
(2) Inform the client of applicable procedures, including deadlines and the anticipated course of the proceeding.
(3) Inform the client of applicable procedures for service of process and filing of documents.
(4) Provide the client with self-help materials prepared by a Washington lawyer or approved by the Legal Technician Board.
(5) Review and explain to the client documents received from the opposing side.
(6) Select, complete, file, and effect service of forms that have been approved by the State of Washington, the Legal Technician Board or prepared by a Washington lawyer and advise the client of the significance of those forms to the client’s case.
(7) Perform legal research and draft legal letters and documents beyond what is permitted in (5), if the work is reviewed and approved by a Washington lawyer.
(8) Advise a client as to other documents that may be necessary to the client’s case and explain how such documents may affect the client’s case.
(9) Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.
As would be expected, there have been vehement arguments both for and against these non-lawyer, legal service providers. Depending upon your point of view, they will either help correct a significant lack of access to our civil justice system or will pose a risk to the public and “take work away from rural and less affluent lawyers”.
I must admit, I didn’t follow the legal technicians debate when it was underway. My focus on reducing the cost of legal services has always been technology centric – improving “how” we practice which is what drove me to help found both Attenex and MetaJure. A recent conversation with a group of lawyers in which strong views about legal technicians quickly surfaced caused me to also start thinking about the “who“ aspect of delivering legal services, and the role it could or should play in helping to lower costs and increase access.
For consumers, their primary need is assured access to legal services at an affordable cost– with access and cost being intricately linked. Having a lot of lawyers willing to take you as a client, but at a cost that is beyond your means is not a solution. Nor is having affordable providers, but with limited or no capacity to take you as a client.
You could argue that the former situation (lots of access, but prohibitive cost) describes the current state of affairs in today’s private law firms. The latter situation (affordable cost, but limited access) describes the state of affairs at most public interest legal providers.
While there is a lot we can and should do to increase the number of lawyers doing pro-bono and low-bono work, I don’t believe given the scope of the problem that more volunteers, even coupled with technology improvements, will solve our significant access to justice problem. Nor is increased funding for legal aid providers a likely solution in today’s world of tight state and federal budgets. Rather, the lion’s share of improving access to justice needs to come from improving the cost structure of our private practitioners.
So what can the profession do to decrease the cost of privately provided legal services? First, private practitioners could voluntarily decrease their hourly rates (at least for people of low and moderate incomes), which in essence is how the Washington State Bar Associations’ Moderate Means Program functions. There is, however, a limit to how much private lawyers can or will do in this regard as it either increases their workload in order to maintain their current income, or their workload stays the same which effectively decreases their income. While laudable, I don’t see this as a viable option to address the scope of the unmet legal needs problem we are facing, especially when even a significant rate cut (say from $200/hour to $100/hour) still has legal services out of most people’s financial reach.
Second, you could use technology to improve the productivity and efficiency of lawyers such that the effective cost of legal services goes down as the hours required to complete a given task decrease. To me, this option still holds an enormous of promise for the profession, but as Kevin and I have previously written a lot on this topic, I won’t repeat those ideas here.
Third, you could seek to dramatically increase the number of practicing lawyers, which in essence creates a bigger supply of practitioners and more competition, which theoretically would drive legal fees down. With falling law school enrollments and a large Baby-Boomer group of practicing lawyers headed towards retirement, even a concerted effort to increase lawyer supply is not a reasonable or near term solution.
Fourth and finally, you could increase the types of individuals who are authorized to provide legal services, such that the supply of legal practitioners is expanded, but through lower cost individuals who are restricted in what they can do. This is how I see legal technicians. It simply follows in the footsteps of the health care industry which has licensed non-doctor phlebotomists to draw blood and medical assistants to take medical histories, record vital signs, explain treatment procedures and prepare patients for exams.
In the medical setting, these non-doctor health care providers have helped lower the overall costs of medical services, enabled doctors to focus on higher skill tasks, and increased access to medical services as your doctor no longer is spending time drawing blood or taking your vital signs and accordingly can see more patients. If legal technicians can do the same for lawyers and the legal profession, why the objections?
Assuming our goal is increasing access to legal services and making them more affordable, then the objections really come down to making sure legal technicians are properly trained, vetted, certified, overseen and are limited to, and only perform, the tasks for which they are licensed. These are execution issues that the bar definitely needs to get right. Other objections, however, such as being “unfair” to the current bar or “taking work away from young, rural lawyers” seem to me more about protecting our interests as lawyers rather than looking out for the interests of the consuming public and our legal system at large. These “lawyers first” positions may also turn out to be a bit ironic as I believe many family law practitioners will figure out ways to bring legal technicians into their firms in ways that actually increase their clientele and improve profitability and client satisfaction, just as physicians have figured out ways to profitably and successfully bring phlebotomists and medical assistants into their practices.
We have limited time and only so many arrows in our quiver to address the issue of increasing access to affordable legal services. Our legal system only works well if all our citizens have access. Maybe now is time to focus on the “who” of providing legal services in addition to the “how”. What do you think?