Robert Ambrogi is a lawyer and writer in Massachusetts.
Cummings is part of Washington state's ambitious experiment to revolutionize access to legal services, particularly among the poor. In the United States, 80 to 90 percent of low-income people with civil legal problems never receive help from a lawyer. This means that domestic violence victims might file for a restraining order alone. Couples who want to divorce might do it without counsel. In some states, parents who have lost custody of their children might fight that decision without any guidance.
Columbia law professor Risa Kaufman has called this a "human rights crisis." And it's fueled by the sky-high price of legal help. In 2014, even lawyers with less than three years' experience billed an average of $255 an hour (though, of course, rates vary widely). Most younger lawyers, saddled with tens of thousands of dollars in law school debt, can't charge more affordable rates. And legal aid offices, meant to fill the gap, are shedding funding and services at an alarming rate.
Washington state’s answer is a new class of legal professionals called “limited license legal technicians.” They are the nurse practitioners of the legal world. Rather than earning a pricey law degree, candidates take about a year of classes at a community college, then a licensing exam. Once they do, they can help clients prepare court documents and perform legal research, just as lawyers do. “It will save time and heartache,” says Paula Littlewood, executive director of the Washington State Bar Association. “It’s groundbreaking.”
California, Oregon, Colorado and New Mexico say they may follow Washington’s lead. The program, if it spreads, could transform how middle- and lower-class Americans use the law.
The government is required to provide counsel in criminal cases. But when it comes to civil suits (everything from consumer issues to employment, real estate and family law), people are often on their own.
One 2013 study found that 66 percent of adults had struggled with a "civil justice situation" in the past 18 months. Seventy-eight percent did not seek help from a lawyer. In a 2010 survey of 1,200 trial judges, respondents said they'd seen a significant uptick in the number of people representing themselves since the 2008 economic recession. When she unveiled the survey results, Carolyn B. Lamm, then president of the American Bar Association, noted that "this includes not only the poor but the middle class because . . . middle-class people are unable to spend to retain lawyers."
In that same survey, 62 percent of judges said the outcomes for people without counsel were worse. “People end up being buffeted about” the legal system, says David Udell, executive director of the National Center for Access to Justice. “The consequences can be failure to understand or enforce an order that can prevent ongoing violence or protect the safety of kids. It can mean losing the right to continue to live in one’s home.”
In theory, legal aid programs should step in once people are priced out of private counsel. But most are severely strapped for cash. The Legal Services Corporation, which funds 134 providers across the country, saw Congress cut its budget by $80 million between 2010 and 2013. Over the past couple of years, at least 1,200 legal aid workers, about 1 in 7, have lost their jobs. Some states have fewer than one civil legal aid lawyer per 10,000 residents who fall below the federal poverty line.
Washington state is no different. A 2003 study found that low-income people handled more than 85 percent of their legal problems without help from an attorney. "We have people come in who relied on a friend who thought he knew how to fill out paperwork," Cummings says of the clients she sees at Fiori Law, where she's a paralegal. "Then they'd go to court and get creamed. They'll come to us, and we'll look at their paperwork and it's a disaster."
The report pointed to people like Ruth, 37, who was unable to afford her mortgage payments after her divorce. Her bank threatened to foreclose, and then her ex-husband hired a private attorney and sued for full-time custody rights of their son. Ruth couldn’t afford a lawyer and had to navigate the system herself, which slowed the case and brought intense extra stress during a difficult time.
Or Debra, 47, a domestic violence survivor facing cancer surgery. A legal adviser could have helped her avoid foreclosure on her home and ensure that the government paid for her medical treatment.
The Supreme Court of Washington state studied the issue and, in 2012, adopted a rule that allowed licensed non-lawyers to practice law in some limited ways. The court then appointed a 13-person Limited License Legal Technician Board to figure out what these LLLTs would need to know and how they should be chosen.
Working with a handful of state law schools, the board put together a list of requirements: Candidates would need to learn civil procedure, legal research, contracts and advanced family law. Twenty-nine community and technical colleges signed on to offer the necessary courses. The first class of 15 candidates matriculated in the winter of 2014.
All told, the program costs about $10,000 — far less than the average public-school law degree, which is $50,000. Finally, they apprentice under a lawyer for 3,000 hours before they hang their shingles. “They’re highly trained in a specific field of law,” says Steve Crossland, who chairs the LLLT board. “In some ways, it’s more intensive training than what a lawyer gets.”
There are some limits. Washington’s LLLTs will be restricted to family-law issues, though administrators may eventually expand the program’s purview. And they can’t represent clients in court.
So far, the program has mostly attracted paralegals. The appeal, Cummings says, is the autonomy. “Paralegals tend to multitask,” she says. “I’ll get to finally sit down at my desk, focus on the client and do the job they are paying me to do.”
Not everyone is so excited.
The Washington State Bar Association opposed the LLLT proposal right up until its approval by the Supreme Court. It argued that the rigorous training lawyers receive is essential to competently handling legal matters and protecting clients’ best interests. “All we’re providing is access to injustice, because the class of individuals described is not going to have the competency to actually do for the poor what needs to be done,” Ruth Laura Edlund, former chair of the state bar’s Family Law Section, said at a forum on the idea. “Just because you’re poor doesn’t mean your legal problems are simple.”
These concerns, though, ignore the basic economics of practicing law. “Many clients can’t afford what lawyers need to recoup to service their debt load,” says Elie Mystal, an editor of the legal news Web site Above the Law. “And so we have this weird situation where we both have too many lawyers and underserving of clients.”
Since an LLLT license is so much more affordable than a bar accreditation, candidates say they’ll charge considerably less than lawyers do, Crossland says.
Some Washington state lawyers also complained that the program would tighten an already tough job market. Only 84.5 percent of recent law school grads are employed. But LLLTs won't replace lawyers, who will still be needed when a client goes to court or confronts a particularly challenging legal issue. Down the line, the program might even discourage some people from going to law school in the first place, reducing the glut of law grads competing for a limited number of positions. "You've got a class of people who want to increase their earning potential through doing low-level legal work, but they don't want to invest three years and $150,000 in debt," Mystal says. "This seems like a great option."
Of course, Washington's LLLT program won't completely solve the access-to-justice crisis. But it's part of a broader movement to lower the cost of legal services. Companies like LegalZoom and Rocket Lawyer, which started out providing affordable, do-it-yourself legal forms for everything from starting a business to completing a will are thriving. They are beginning to expand the services they offer, ranging all the way to direct advice from a lawyer. LegalZoom had served some 2 million customers as of 2012, according to Securities and Exchange Commission filings
Meanwhile, there is increasing support for state bars to follow Britain's lead and lift their bans on non-lawyer ownership of law practices. This would free corporations to deliver legal services on a broader scale and at more affordable prices. One day, customers could go to stores like Walmart to consult an attorney.
Even the public face of the legal profession, the 400,000-member American Bar Association, is beginning to acknowledge that the crisis is too big for lawyers to solve alone. In a January 2014 report, an ABA task force on the future of legal education called on states to license “persons other than holders of a JD to deliver limited legal services.” Among the panel’s 28 members were two key organizers of Washington’s program.
"We need to take a leaf from the medical profession, which has long recognized that people with health problems can be helped by a range of assistance providers with far less training than licensed physicians," New York Court of Appeals Chief Judge Jonathan Lippman said in his 2014 state of the judiciary report. "We all accept that. Why not the same in the law?"
ambrogi@gmail.com
