Access to affordable legal services is a problem in our state, and the focus on this problem continues to grow as the number of self-represented litigants rise in our court systems. In 2003, a Civil Legal Needs Study commissioned by the Washington Supreme Court determined that 80 percent of individuals with low to moderate income did not have access to the legal help that they needed. Accordingly, there has been a push within the profession to make legal services more affordable. Some attorneys offer a flat fee or bundled services to meet client demand. Other attorneys will also work on a sliding scale, providing services based on the income of the client, or even work for a handful of lucky clients pro bono. Additionally, there are a number of great nonprofit organizations offering access to attorneys for modest means, such as the NW Justice Project and the Clark County Volunteer Lawyer Program.
While these lower-cost options have partially met the demand for affordable services, many low-income clients continue to have difficulty finding legal representation. In response to this problem, the Washington Supreme Court has authorized the practice of “Limited License Legal Technicians” or (LLLTs). According to the WSBA, a LLLT is to a lawyer what a nurse practitioner is to a doctor. A LLLT need not obtain a law degree or pass the bar exam to obtain a license. To qualify for admission as a LLLT, an applicant must meet certain specialized education requirements, pass the LLLT exam and have at least 3,000 hours of experience under the supervision of an attorney, among other requirements.
The development of the LLLT program may seem like a win for advocates of equal justice, and depending on how the program is implemented, it very well may help serve the need for affordable legal services. However, I have concerns that the limitations of the practice may actually impede their effectiveness. Additionally, I believe that there are some inherent issues with the concept as it stands that could create serious problems for the legal profession.
As of this writing, the LLLT rules only authorize practice in family law. Additionally, the scope of the work authorized within that field is seriously limited. A LLLT cannot make court appearances for the client, negotiate settlement or appear for a party at a deposition, among other legal services traditionally provided by an attorney.
So if LLLT’s cannot perform the above services, what are they able to do? To summarize, much of the work comes down to drafting and filing certain types of approved paperwork in divorce and custody cases. While there is certainly a need present in this community for assistance filing legal paperwork, there are also options for these services outside of the LLLT program, such as the family court facilitator and the Volunteer Lawyer Program. Additionally, due to the limitations of the law, the LLLT program does not directly address the rise of unrepresented litigants in court.
Moreover, there are additional limitations within the work authorized above that may create serious issues in practice. While I believe that LLLTs are allowed to provide legal advice with respect to certain issues relating to the forms, they are prohibited from advising clients on pivotal issues inherent in the forms. For example, a LLLT cannot advise a client concerning division of real estate, business entities or retirement accounts that require entry of a supplemental order (this refers to most retirement accounts that are not IRAs). Additionally, a LLLT is prohibited from advising clients about bankruptcy, no contact orders, major parenting plan modifications, relocation and UCCJEA (jurisdictional) issues.
I would posit that in order to fill out many of the standard forms correctly, you must have knowledge of many of these prohibited issues. If you ignore these issues, there is a sizable chance that you may end up back in court. In some very limited divorces, where there are no children, no retirement or real property and no domestic violence, you may be able to avoid invoking these issues, but I would estimate that this constitutes a minority of cases.
To stick with the nurse practitioner analogy, it would be like if you went to a practitioner with a cough. The practitioner could tell you that you had a cold, but could not advise you about more serious diseases. Then, when you choose your method of treatment for the cough, you would be left to seek out a doctor, or perform the treatment yourself. If you only have a cold, you may end up alright, but if it is anything else, you might have some serious problems down the road. Additionally, one of the reasons that nurse practitioners have been so successful is that many patients have access to a doctor through insurance if a referral is needed. The LLLT rules outline a procedure for referring clients to an attorney, but keep in mind that the reason the client is seeing an LLLT is because they cannot afford the attorney in the first place. The LLLT may give the client more motivation to see an attorney, but that doesn’t mean that the client will be able to afford it.
While I do have concerns about the program as it is written, this is in no way an indictment of the LLLTs as individuals, or their abilities. I have met my share of paralegals that would be able to hold their own against an attorney, and I am assuming that the training and educational requirements will produce highly skilled technicians within the limited scope of the law. My questions center on how this will work in practice, and seeing as the first class of LLLTs were licensed in Washington this year, this remains to be seen. The Supreme Court has discussed expanding the practice of LLLTs into other areas, such as elder law, landlord tenant disputes and immigration. If the program is successful, and clients are happy with the services provided, this will no doubt expand into other areas. As the first state to adopt such a program, it will be interesting to see how the program develops and whether other states follow Washington’s lead.
Matthew T. Blum is an attorney for the Law Offices of Carolyn M. Drew, P.S., focusing on Family Law, Estate Planning and Probate matters. He can be reached at 360.690.0822 or matt@carolynmdrew.com. The above editorial contains general information and not legal advice. If you have questions about specifics of your own case, you should consult with an attorney.
