July 2008
Legal Technicians: Myths and Facts
by Rita L. Bender and Paul A. Bastine
1. MYTH: Legal Technicians Would Not Serve People Who Are Most in Need of Legal Services.
FACT: The Washington State Civil Legal Needs Study (2003) commissioned by the Washington State Supreme Court provides information indicating areas of greatest need as well as quantifying the dimensions of unmet need for low-income people. It is calculated that approximately 88 percent of all such legal needs are unmet.
Legal assistance is not available to many people in this state. The economics of legal practice are such that low-income people — the working poor who may have too much income to qualify for legal services programs, even when such programs have the capacity to provide additional services — simply cannot afford a lawyer. This unmet legal need can be addressed in some part by a functional framework for non-lawyer limited practice.
Legal technicians will be able to provide limited services to people who will litigate their cases pro se. The use of technicians for the more routine tasks will free lawyers to undertake pro bono representation of clients in court, or to assume responsibility for the more complex issues which are prohibited to the legal technician.
2. MYTH: This is the Beginning of Non-Lawyers Taking Over the Legal Profession.
FACT: Non-lawyers already offer legal services, even though they often are not trained or supervised, and there is no regulation by the courts or legal professionals. There are scores of individuals and entities operating in this state, ranging from Internet operations such as legalzoom.com (which advertises having served over half a million people) to untrained paralegals and “notarios.” Consumers are not adequately protected in the event of negligence or abuse. The legal technician rule would safeguard the public by specifically defining the role of non-lawyer technicians and placing them under the supervision of the Supreme Court — making them a legitimate part of the legal community. When courthouse facilitators were authorized, the same argument was made in opposition that is being used to oppose legal technicians. Despite the threat of dire consequences, that program did not result in a “takeover of the legal profession,” although it has helped some pro se litigants and the courts, where it is accepted in most counties.
The March 2008 report on the courthouse facilitator program by the Washington State Center for Court Research, Administrative Office of the Courts, reports that of litigants who did not receive assistance by attorneys or courthouse facilitators, 43 percent obtained their litigation assistance from friends or relatives, 16 percent from the Internet, and 29 percent nowhere. The need for assistance for poor and modest-income people is staggering.
3. MYTH: The Practice of Law Board Inappropriately Circumvented the Board of Governors by Submitting the Rule to the Supreme Court.
FACT: In March 2006, the POLB presented the proposed legal technician rule to the full Board of Governors for comment. The BOG voted not to support the rule as it was presented. A second motion invited the POLB to further refine the rule. A study committee was appointed, composed of the POLB, a Supreme Court justice, two members of the BOG (who are liaisons to the POLB and attend non-executive session portions of POLB meetings), the president of the Young Lawyers Division, and the present chair of the Family Law Section’s Executive Committee. This committee unanimously decided that the POLB should study areas and scope of practice and make a refined further proposal. It has done so. The POLB further sought legal counsel as to anti-trust/restraint of trade concerns. The advice received was clear and unequivocal: The proposal should be sent directly to the Supreme Court, limiting the likelihood of creating problems for either the WSBA or the Supreme Court regarding restraint of trade. GR 25 provides that the WSBA may comment on such proposals, as it has indicated it will do. GR 25 does not require that the WSBA must approve any proposal, for the reasons just indicated. At all times, the staff and the BOG of the WSBA have been aware of the actions of the POLB.
4. MYTH: Those Opposing the Rule Are Doing So to Protect the Consuming Public.
FACT: The WSBA is an organization whose mission is to “serve the public and the members of the Bar.” That certainly is an appropriate mission, but when the members’ interests are inconsistent with the interests of consumers, there is a conflict. The position of those opposing the rule might be best summed up by the following statement in a King County Bar Bulletin article:
The legal technicians also would directly compete with attorneys and, as nothing within the rule limits a legal technician to indigent clients, attorneys and legal technicians would have significant overlap in their client bases.
The rule which the POLB proposes would allow trained and regulated people to offer limited legal services at lower cost to those pro se litigants who cannot afford a lawyer. The legal technicians would provide services that are now being inappropriately provided by untrained and unregulated individuals. There is more than enough need for services to low- and moderate-income people that the provision of those services will not jeopardize the livelihood of lawyers. Indeed, it may permit lawyers, freed up from more mundane tasks, to use their skills to meet more complex needs of clients and make them available for referrals from technicians for services outside the scope of certification.
5. MYTH: Legal Technicians Will Be Insufficiently Trained.
FACT: Under the proposal, a legal technician must be a graduate of a paralegal/legal assistant program that is approved by the American Bar Association or the commission created under the rule. The technician must have an associate’s degree or a degree from a paralegal/legal assistant program that consists of a minimum of 90 quarter hours, at least 45 quarter hours of which are substantive legal courses; or a bachelor’s degree in paralegal/legal assistant studies; or a post-baccalaureate certificate in paralegal/legal assistant studies. In addition, the legal technician is required to have experience under the supervision of a lawyer of a minimum of two or three years, depending upon the degree held.
Each legal technician also must complete approved or accredited education during each calendar year, in courses certified by the commission.
6. MYTH: Legal Technicians Will Be Untested.
FACT: The legal technician must complete an examination which shall, at a minimum, cover the Rules of Professional Conduct, rules of ethics, attorney-client privilege, and procedural and substantive law issues related to the area of practice. The commission, composed of lawyers and legal educators, will create the proficiency test.
7. MYTH: Legal Technicians Will Not Be Held to Ethical Standards.
FACT: Legal technicians acting within the scope of the proposed rule shall be held to the standard of care of a lawyer, and to the same ethical standards as a lawyer, except to the extent that the Rules of Professional Conduct conflict with the rule, in which case the rule shall apply.
The Supreme Court, in considering the enactment of the rule, will need to consider whether the privilege which an attorney is bound by would extend to a legal technician by virtue of the rule, or whether it will be appropriate to seek legislation to extend the privilege to legal technicians. Courthouse facilitators, who presently perform services for both sides of the same case, are not currently bound by privilege. Legal technicians will be restricted from serving conflicting parties, they do not represent any party, and they suffer the loss of certification if they act outside the scope of the rule.
All funds that come into a legal technician’s possession are subject to RPC 1.15.
8. MYTH: Legal Technicians Will Litigate Cases.
FACT: The legal technician shall not represent clients in court proceedings or negotiations but may provide limited legal assistance to a pro se litigant. The technician may operate only within the scope authorized by the rule, regulations, and Supreme Court directives. Work that requires the special skills of a lawyer will have to be referred.
9. MYTH: Legal Technicians Will Hire Untrained Assistants to Actually Provide Client Services.
FACT: Anyone providing services must be certified pursuant to the rule, have a staffed office for the acceptance of service in Washington, and personally perform the client services. A legal technician shall not supervise a non-certified individual to perform the services in the legal technician’s stead.
10. MYTH: Legal Technicians Will Practice Outside the Authorized Area.
FACT: A legal technician may not provide services when assistance is required which exceeds the practice authorized. The technician then must inform the client when the client requires the services of a lawyer. In the event a legal technician acts outside of the scope of authorized practice, disciplinary action could remove the technician’s certification. The scope of family law practice under RCW 26, as recommended for approval by the Supreme Court, is limited, prohibiting the legal technician from assisting clients in areas where the Supreme Court determines that the skills of a lawyer are required.
11. MYTH: The Legal Technician Rule Would Be Too Costly.
FACT: After a start-up period in which the commission which will administer testing and oversee the system is put in place, it is anticipated that the legal technicians will pay for themselves through fees. The rule provides that there will be a fee for testing, just as for attorney applicants taking the bar examination, as well as an annual certification fee. Fees will be adjusted based upon the costs incurred and the number of applicants for certification. GR 25 requires “that the costs of regulation . . . be effectively underwritten within the context of the proposed regulatory regime.”
The costs of the start-up period may be funded by a variety of sources, which the Supreme Court will undoubtedly consider. Those might include the Administrative Office of the Courts, loans from the WSBA, private foundation grants, or some combination of these. In any event, the start-up expenses are not anticipated to go beyond approximately three years, after which the program should be self-supporting.
12. MYTH: The WSBA Cannot Afford to Fund the Legal Technician Proposal.
FACT: In October 2006, the WSBA, through the BOG, submitted a proposed rule to the Supreme Court which was adopted effective September 1, 2007, in which the Bar Association agreed to “paying expenses reasonably and necessarily incurred” by the POLB among others (GR 12.2). This was six months after the first full presentation of the rule to the BOG, when it was known that the proposal would be further developed and then recommended by the POLB to the Supreme Court. Yet no objection or modification to the WSBA obligation was made in its request to the Supreme Court to clarify the Association’s role in funding the POLB. When GR 24 and 25 were adopted, the WSBA had agreed with the Supreme Court to fund the operations of the POLB. Five years later, it was no surprise to the BOG that there would be expenses.
The Bar Association fully covers the operations of the Limited Practice Officer Program and has done so since 2002, when it took that responsibility over from the Court. It makes a net profit from that operation, almost $20,000 as set forth in the 2007 budget. With a WSBA budget of approximately $18,000,000 and reserves of $6,000,000 (October 2007 WSBA budget), it is unconscionable to argue that the WSBA should not assist in the limited expenses in aid of access to justice for the working poor. Such commitment is consistent with the mission of the Bar “to promote justice and serve its members and the public.”
13. MYTH: It Would Be Inappropriate for the Supreme Court to Authorize Non-Lawyer Practice.
FACT: The Supreme Court intended that non-lawyer practice might be authorized when it adopted GR 24 and GR 25 and directed the POLB to make recommendations for such practice. This proposed rule responds to that directive. It is consistent with the Supreme Court recognition of the role of non-lawyers in the closing of real estate transactions. The Supreme Court authorized the limited practice officer rule for that purpose. Likewise, the proposed legal technician rule is consistent with the holdings in Cultum v. Heritage House (103 Wn 2d 623, 694 P2d 630 (1985)), (authorizing real estate agents to practice law by completing earnest money and other related contractual agreements) and Perkins v. CTX (137 Wn 2d 93, 969 P 2d 93 (1999)), (authorizing non-lawyers to prepare and complete other legal documents). The rule recognizes the positions of the U.S. Department of Justice and the Federal Trade Commission requiring that non-lawyers be allowed to perform what was traditional legal work, where appropriate.
14. MYTH: The Supreme Court and the Bar Cannot Effectively Operate a Non-Lawyer Program While Protecting the Public.
FACT: The limited practice officer rule has operated effectively, with very few complaints and few liability issues. The courts and the Bar are the entities that can and should provide oversight for non-lawyer practice. This is where the skill and knowledge for oversight exists. It is a mistake to let the current uncontrolled non-lawyer practice continue and expand without limitation. The legal technician rule will provide a “bright line” for prosecutors, attorneys general, and the public as to appropriate, supervised, and regulated non-lawyer practice.
15. MYTH: There Are No Sufficient Financial Responsibility or Insurance Requirements for Legal Technicians.
FACT: Each certified legal technician will be required to show proof of ability to respond in damages resulting from acts or omissions in the performance of services. (On the other hand, there is no requirement in Washington that attorneys carry malpractice insurance, or show proof of ability to respond.)
16. MYTH: The Legal Technician Will Not Be Able to Operate at Lower Cost than an Attorney.
FACT: Legal technicians will have fewer costs to pay than attorneys. For example, the legal technician will not have the burden of costly law school loans to repay. According to the American Bar Association, the average law school student loan is approximately $88,000. Legal technicians’ offices will not require access to costly legal research or library subscriptions. Some legal technicians may be hired by not-for-profits to serve their clientele, in which case the overhead would be covered by the agency’s funding source. Other legal technicians may rent space in low-rent agency facilities. Still others may obtain affordable space in neighborhoods in which their low- and modest-income clients are likely to be located.
17. MYTH: Legal Technicians Will Provide Second-Class Representation.
FACT: The legal technicians will not provide representation, in that they cannot appear in court or negotiate a case. What they can do is assist pro se litigants in understanding the pleadings and evidence which the litigant will need to present in order to succeed in litigation. They also can help to demystify the process for the pro se litigant.
Conclusion
There seems little doubt that if a client could choose between having the full services of a lawyer, or the very limited assistance of a legal technician, the client would select an attorney. However, the people likely to be served by legal technicians are those who cannot afford an attorney and would be otherwise forced to proceed without help. We hope a time will come when all people in need of legal assistance will have attorney representation. The courts and the bar have an obligation to continue pushing for the funding necessary to reach that goal. The legal technician rule is not the ultimate solution, but it is a step toward full access to justice.
Rita L. Bender is a 1968 graduate of Rutgers University School of Law. She has practiced in the public defender offices in Newark, New Jersey, and taught law in the Rutgers Urban Legal Clinic. In Seattle, she practiced at the Public Defender Association, and was the regional director of the Legal Services Corporation regional office. She is a principal in the Seattle firm Skellenger Bender, where her practice focuses on family law and adoption and legal ethics. She has worked on issues of access to justice on various committees over the years: as one of the original appointees by the WSBA Board of Governors to the Legal Foundation of Washington and she was appointed by the Washington State Supreme Court to the Practice of Law Board upon its creation. She has written and spoken throughout the country on the complexities and necessity of restorative justice.
The Honorable Paul A. Bastine has served as presiding judge for Spokane County Superior Court and became the first family law judge dedicating his full judicial time to the administration of justice in family law. He retired from full-time judicial activity in January 2005, but still serves as a pro tem judge. Judge Bastine has volunteered his time for many access to justice efforts. He served as an initial member of the Access to Justice Board; was appointed by the Washington State Supreme Court to the Legal Foundation of Washington and served as president of that board; and served as trustee and president of the Spokane County Bar Association. He was appointed to the Practice of Law Board at its inception and serves as vice-chair. In 1998, he was awarded the Goldmark Award from the Legal Foundation of Washington.
