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July 2008Legal Technicians Aren’t the Answer: The Family Law Section’s Executive Committee Weighs Inby Jean Cotton In January 2008, the Practice of Law Board (POLB), contrary to GR 25 Regulation 8D, bypassed the WSBA Board of Governors (BOG) and presented its proposal for expanding the practice of law to non-lawyer legal technicians directly to the Washington State Supreme Court. Since spring 2003, the WSBA Family Law Section Executive Committee (FLEC) has become vitally concerned about the potential impact on the public that would result from creating new avenues for non-lawyers to practice law. In October 2005, FLEC wrote to the POLB and BOG to express the growing concerns of the Section. At its March 2006 meeting, the BOG, after hearing the POLB proposal for implementation of a legal technician rule and considering comments in opposition to the proposed rule from nearly every WSBA section present, rejected the proposal by a 12–2 vote. Nevertheless, the POLB drafted rules to create a multi-year pilot project for one or more practice areas within which legal technicians would be allowed to operate. Although others were invited, only stakeholders consisting of representatives from the BOG, the Washington Young Lawyers Division, and FLEC attended meetings from April 2006 through January 2007. The stakeholders offered concerns and constructive suggestions, which were dismissed. In addition, the POLB frequently conducted its discussions in executive sessions or private discussions that the stakeholder representatives were excluded from attending. These stakeholders attempted to suggest creative, alternative means that would provide affordable legal services to those identified in the Washington State Civil Legal Needs Study1 (CLNS) as most in need. These suggestions included: • Funding and bolstering of low-income services through Northwest Justice Project, Greater Access and Assistance Project (GAAP), and similar programs. The POLB ignored all such suggestions. By October 2006, the POLB had identified four areas of practice to study via a subcommittee process for purposes of establishing a legal technician pilot project: elder law, landlord-tenant, family law, and immigration. FLEC formally requested that a seat be reserved on each of the subcommittees for a representative from the affected section’s leadership, but no section leadership was invited to participate. Except for POLB members serving as chairs, none of these subcommittees’ members had participated in any of the meetings between April and October 2006, where the issues were most openly discussed. This effectively eliminated exposure to dissenting opinions. Stakeholders then asked to be allowed to attend subcommittee meetings to observe the deliberations and to be kept up-to-date on the activities, but once again these requests fell on deaf ears. As others became aware of the POLB’s proposal, they began to voice concerns. With elder law targeted as one possible pilot project area, the Elder Law Section and the National Academy of Elder Law Attorneys, Washington Chapter sent letters to the POLB expressing their strong opposition and concern regarding the use of legal technicians. Opposition also has been expressed by the Washington State Trial Lawyers Association, Washington Defense Trial Lawyers, WSBA Litigation Section, Washington Chapter of Immigration Lawyers, Tacoma-Pierce County Bar Association, and others. In each case, the concerns focused primarily on the complexity of the practice of law and the potential harm to the public if legal technicians were authorized to practice law. Protecting the public is our highest priority. Family law has now been selected by the POLB as the first area in which to authorize legal technicians. However, the POLB has indicated its intent to expand legal technicians into elder law, landlord-tenant, and other areas of practice. Family law is one of the most challenging areas of legal practice, balancing the skill of litigation with knowledge of the law, the psychology of clients going through one of the most stressful events of their lives, and developing the necessary financial acumen to make a practice thrive. Contrary to the misperception of some, family law is quite complex. Providing inaccurate or inadequate legal services in family law cases can lead to long-term, disastrous results for the families of our state. Examples of potential problematic outcomes include: • Loss of custody or contact with one’s children. The emotional and financial cost to clients to correct most of these types of errors would far exceed the cost of doing them right the first time with the assistance of an experienced attorney. In many cases there is no way, short of an extremely expensive appellate process, to correct such errors and, in some cases, no means at all. The proposal for legal technicians to practice family law simply does not meet the needs identified in the CLNS. The POLB has refused to include financial need as a component of its proposal or as an underlying qualifying factor for providing legal services by legal technicians. Those most in need of legal services in this state, those falling under the low-income category, would have to compete for the services of legal technicians on the same basis as individuals in the higher income categories, thus perpetuating even further a system of “haves” versus “have-nots.” Although unknown factors (such as the number of legal technicians) make it difficult to project costs, the WSBA estimates the cost of the Legal Technician Program to be nearly a million dollars over a five-year period. It should be noted that the WSBA, through use of its members’ dues, has already funded the POLB with $573,133 since its inception in 2002 through April 2008. Although the POLB was to provide the BOG with meaningful estimates of the costs of the proposed pilot projects including economic viability data, i.e., the cost of maintaining an office and the amount legal technicians would have to charge for their services, no such data has been provided to date. Like any other business, legal technicians would have to pay office rent and salaries, buy supplies and equipment, and incur other operating expenses. Accurate cost estimates are necessary to determine the economic viability of the project. However, rather than realistically estimating the costs of operating such an office, the POLB simply suggests that expenses will be reduced by such measures as legal technicians’ use of nonprofit organizations’ relatively low-cost facilities. Similarly, the POLB’s report cites the low cost of services available on the Internet without noting that these services are available only for non-contested or default actions not requiring litigation. Early estimates suggested that legal technicians would likely have to charge upwards of $150 per hour or “whatever the market will bear” for their services, but this information is absent from the POLB’s report. The areas identified in the CLNS as having the greatest need for civil legal services were housing, family, consumer, employment, health, and public services. However, the category of family law included legal issues that affect low-income families four times more often than higher income families, i.e., issues involving foster care and child-welfare authorities in what are commonly known as dependency proceedings. In dependencies, however, low-income parents and children are now entitled to legal representation at state expense.3 Even at that, the CLNS found that “[Family law is] not the area of greatest need [revealed] in either survey, and accounts for only 13 percent to 14 percent of legal issues experienced by low-income people.”4 Meanwhile, the CLNS revealed that a far greater percentage of family law cases involved the assistance of an attorney for low-income clients than any other category of need identified. Although there clearly remains an unmet need, attorneys already are providing services either at reduced rates or on a pro bono basis for their family law clients much more often than for any other type of clientele. Nearly half of all low-income people did not seek legal assistance because they did not know that there were laws to protect them or that relief could be obtained through the justice system. This would seem to call for greater education of the public rather than watering down the quality of legal services in the state by authorizing non-lawyers to practice law. According to the CLNS, “Low-income people face more than 85 percent of their legal problems without help from an attorney. Attorney assistance is most helpful in family-related issues, but even here only 30 percent of legal issues reported are addressed with the assistance of an attorney. Removing family-related issues, low-income people receive help from an attorney in connection with less than 10 percent of all civil legal issues.”5 The benefit of having attorney assistance speaks for itself. “The data demonstrates that getting help from an attorney dramatically improves satisfaction with the outcome of a legal problem as well as feelings about the justice system. Among those with legal problems who seek but do not get an attorney’s help, only 19 percent were satisfied with the way their legal problems work out. When households receive an attorney’s help, however, the satisfaction rate more than triples, to 61%.”6 The public — especially those who are most in need — would be better served by the WSBA and others supporting existing programs designed to help our low-income citizenry; e.g., GAAP and the Northwest Justice Project, as well as expanding the role of and funding for courthouse facilitator programs, and educating the public on available legal resources including the availability of unbundled legal services from lawyers. The POLB has often cited the concern that without opening up the practice of law to more non-lawyers, the Bar could face anti-trust litigation from the federal In summary, the Family Law Section’s Executive Committee has respectfully urged the WSBA Board of Governors to recommend to the Washington State Supreme Court the rejection of the POLB’s proposal for implementation of any legal technician program. Viable solutions to address the problem of unmet legal needs for Washington’s poor have been propounded, and many are already in place. Allowing inexpert non-lawyers to practice the complex specialty of family law poses a risk to the public that cannot be ignored. We invite every attorney to submit letters in opposition to the proposed project and rule to their respective governor and to the Supreme Court. This is not a family law problem. This is an issue of significant importance to all attorneys and every citizen in this state. Jean Cotton is chair of the WSBA Family Law Section. NOTES |
