This week, the Preliminary Evaluation of the Washington State Limited License Legal Technician (LLLT) program, performed by the National Center for State Courts and the American Bar Foundation, was released. The basic idea of the program is to permit certain highly trained nonlawyers to perform tasks traditionally viewed as limited to licensed lawyers. The intent is to reduce the costs of access to justice.
The project should be seen as a companion project to the differently conceived New York Court Navigators program, the evaluation of which was performed using the same Framework. The New York project is evaluated here.
Here is the important and very positive bottom line from the new Washington State LLLT Evaluation:
The LLLT program offers an innovative way to extend affordable legal services to a potentially large segment of the public that cannot afford traditional lawyers. While the scope of the role is limited and will not be the answer for every legal problem, LLLTs definitely can provide quality legal services to those who need it and also significantly reduce the stress of navigating a foreign process that is complex and daunting.
The LLLT program also offers the possibility of improving the quality of filings in court cases involving self-represented litigants and thus reducing the time and cost required for courts to deal with such cases. The Washington State example suggests that LLLTs and lawyers may form mutually advantageous business relationships, making referrals to each other as appropriate. Since LLLTs appear to assist customers who could not afford lawyers, they do not compete directly with lawyers.
This program should be replicated in other states to improve access to justice. As experience is gained and its program design is optimized, affordable legal services should become widely available to those with needs in areas where the public typically must now use self-representation. By offering low cost legal services, state bar associations will be able to compete directly with for profit businesses operating outside the regulatory umbrella of state justice systems. By doing so, they can ensure that the public has access to quality legal services.
I would urge everybody to read both evaluations. But it might be helpful to start to pull together some overall lessons from the two together — and indeed from the emerging pattern around the country.
Roles Beyond Lawyers Work
Both pilots, one allowing license non-lawyers to enter the market, and one using non-lawyers to provide support, including the courtroom, but for free, are successes.
Opposition is less than expected
While both evaluations report some initial uneasiness, both seem to have achieved general acceptance. This should give some reassurance to those still holding back on introducing an innovation.
There is opportunity for a wide range of experiments
While we only have two evaluated experiments — New York and Washington State — the general findings about utility, acceptance and impact on access to justice in these two very different contexts strongly suggests that there is room for many other kinds of expansion of the work that nonlawyers are permitted to do, and the kinds of contexts in which it is appropriate.
Training, supervision and approval structures are important
In Washing the cost of establishing the program was high, and ongoing costs of education continue to be a concern. In New York, the impacts (and indeed even the goals) were closely tied to extent of, and investment in, training and supervision. So new experiments would do well to pay particular attention to these aspects of the design — including perhaps experimenting with several different models at one time.
The kinds of tasks appropriate for such roles is only just beginning to be explored
Given the success of these projects , even with with somewhat limited authorization of tasks, there is every reason to believe that the programs would be even more effective if they authorized a broader range of tasks to be conducted by the nonlawyers. The decision about the scope of such expanded roles should be based on the extent to which the education provided and other protections ensure that the nonlawyer can and will perform authorized tasks appropriately. It should not be driven by a desire to protect the profession.
As we simplify systems, such roles will become even more appropriate
This is really obvious. Right now, certain roles may not be appropriate for nonlawyers because they are so complex and/or uncertain. So simplification gives yet another benefit by making it possible to have related tasks performed by less hyper-trained people.
Ongoing networking and advocacy among those conducting these programs, those planning them, and those considering them should be a high priority for all
This is a task that will take leadership and incur costs. It is not fair to expect the pioneer states to absorb this burden. Tasks will include organizing presentations at access to justice gatherings, supporting day to day networking and calls, developing materials (including videos), encouraging research, and advocating for the idea.
A particular priority should be integration into the Justice For All 100% Strategic Planning Processes
Now that we have two evaluations essentially putting American Bar Foundation and National Center for State Courts imprimaturs on this general approach, and indeed two specific implementations, there is just no reason not to consider this as one of the components of the full Justice For All System, as called for by the Chief’s Resolution — subject of course to triage assessment of appropriateness in particular situations.
The evaluation framework Works, and should be broadly used
The framework, while drafted initially for “Roles Beyond Lawyers, is in fact approariate, in my opinion for all access to justice innovation evaluations, and should be used whenever possible. As here, such use will facilitate comparison and the building of an actionable overall picture. Focusing on the three issues of Efficacy, Effectiveness and Sustainability, is a brilliant breakthrough that covers everything.
Finally, huge thanks to the Public Welfare Foundation, in the lead as always, for supporting the development of the Framework and its application to these two projects.
Disclosure: I have been involved in multiple ways with these projects.
One thing I couldn’t glean from the report is why, if 59 people went through the law school training in 3 years, there are only 15 LLLTs. It’s also interesting that the school providing the training conservatively projected 25-100 students, and their cohort numbers (17, 23, 19) are well below that. The report states that the lack of financial aid was a barrier, but I’m not clear if that’s based on actual interviews with people or if it’s just speculation.
I also note that the report says, “Because the line between allowable and forbidden types of assistance followed the complexity of legal tasks and not the typical tasks in types of family law actions, clients were sometimes forced to do things by themselves that they wanted LLLTs to do or were required to contract with lawyers for unbundled assistance when it was available.” This raises the question of whether the program, given its limits, will be able to deliver the services people actually need. The report says there’s already a petition to the state supreme court to expand what the LLLTs can do (like in-court appearances), but to me it starts to get worrisome if their role begins to approximate that of a lawyer but without the full training lawyers receive (especially given the already-approved decision to let non-ABA-accredited schools provide the training).