Nothing in this post should be read to undercut the conclusion that this is a very important initiative that is creating a new profession that will be able to provide extensive access to justice services and do so in the marketplace in a fully sustaining way.
However, sadly, the positive impact of the article is dramatically undercut by the headline: Who says you need a law degree to practice law?
The risk, perhaps obviously, is that the article is suggesting the full and complete de-regulation of the practice of law, which is not what is being talked about at all. The perceived suggestion might ramp up anxiety in the bar, even though the concept is currently moving forward with general bar support — and indeed in Washington State is being administered by the Bar itself.
The article itself does explain the limits of the initiative:
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.
But LLLTs won’t replace lawyers, who will still be needed when a client goes to court or confronts a particularly challenging legal issue.
In the context of the dramatic headline, it is perhaps useful, at least in conversations with those who are freaked out by the idea, that the limitations upon the activities which LLLTs are authorized to perform are significant. As Rules 28 F says:
. . .
If the issue is within the defined practice area, the LLLT may undertake the following:
(1) Obtain relevant facts, and explain the relevancy of such information to the client;
(2) Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;
(3) Inform the client of applicable procedures for proper service of process and filing of legal documents;
(4) Provide the client with self-help materials prepared by a Washington lawyer or approved by the Board, which contain information about relevant legal requirements, case law basis for the client’s claim, and venue and jurisdiction requirements;
(5) Review documents or exhibits that the client has received from the opposing side, and explain them to the client;
(6) Select, complete, file, and effect service of forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a Washington lawyer; or forms approved by the Board; and advise the client of the significance of the selected forms to the client’s case;
(7) Perform legal research and draft legal letters and documents beyond what is permitted in the previous paragraph, 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 additional documents or pleadings may affect the client’s case;
(9) Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.
Moreover, the limiting language in Rule 28 H is very explicit. For example it prohibits LLLTs from the following:
(4) Represent or advertise, in connection with the provision of services, other legal titles or credentials that could cause a client to believe that the Limited License Legal Technician possesses professional legal skills beyond those authorized by the license held by the Limited License Legal Technician;
(5) Represent a client in court proceedings, formal administrative adjudicative proceedings, or other formal dispute resolution process, unless permitted by GR 24;
(6) Negotiate the client’s legal rights or responsibilities, or communicate with another person the client’s position or convey to the client the position of another party, unless permitted by GR 24(b);
(7) Provide services to a client in connection with a legal matter in another state, unless permitted by the laws of that state to perform such services for the client;
(8) Represent or otherwise provide legal or law related services to a client, except as permitted by law, this rule or associated rules and regulations;
As I read this, for better for worse, this means that LLLTs are very limited, at least compared to lawyers. LLLTs can do legal research but in certain circumstances where is goes beyond the specific authorization above, it has to be approved by a real lawyer. LLLTs and they can not appear in court in any way, even under the in courtroom supervision of a real lawyer.
While some of these limits may well change over time, this is a long way from what most people would understand from the phrase “practicing without a law degree” — not to mention the very careful regulatory structure put in place to ensure the quality of the assistance given. (The rule is described in much more detail here.) (Please note that in a prior version of this post I incorrectly stated that “LLLTs can . . . not really help [people] with major strategic decisions.” That is not correct.)
Moreover, regardless of the ultimate way we label this — “limited legal practice,” for example, right now we need to co-emphasize both how much help for access to justice this provides, and that this is no way undercuts the traditional role of the bar.
So when folks ask you about the article, please do emphasize the limits of what is currently getting put into place — as well as the rigor of the educational program, which includes practice area courses taught by a consortium of the state’s law schools. But do so in the context of how incredibly valuable this initiative is. It is particularly exciting that it is being rolled out in cooperation with Bar and law schools.
The limits listed above do not mean that research and pilots could not show that many of these limits are not needed — and indeed I have argued for as broad as appropriate a definition of the role. But we are far from there yet. The good news, however is that Public Welfare Foundation has funded deep research by the American Bar Foundation and the National Center for State Courts into this initiative and the New York Navigator Project. When completed, we will know much more about their impact, and hopefully be in a position to both optimize and expand them.