July 2008
A Rationale for the Proposed Legal Technician Limited Practice Rule and Regulations
by Gregory R. Dallaire
I have carefully followed the discussion concerning the wisdom of creating legal paraprofessionals by enacting the proposed legal technician rule and regulations. Having 20 years of experience directing four different legal-aid programs, as well as having been involved in private practice and volunteering in state and national efforts to address the legal needs of low-income people for many additional years, I have first-hand knowledge of the challenges presented in serving those who cannot afford an attorney. This includes both those who are utterly destitute and those who have limited income, usually from low-wage jobs that provide only the necessities of life. I also briefly served on the WSBA prepaid group legal services organization that was created a few years ago to provide access to services for those who fall in the middle, i.e., people whose income exceeds the poverty guidelines for free legal aid but are still unable to afford an attorney. That experience also influences my opinion on the legal technician issue.
In our state, the bar and the judiciary have been concerned for many years about the lack of available resources enabling people to address legal problems in their lives and the lives of their children. The bar's advocacy and support for legal-aid funding in our state has been instrumental in expanding services to low-income people. However, delivering services to those of moderate means has not received the same attention, even though they are frequently visible in our courts as pro se litigants.
Some argue that pro bono work will solve the problem. The organized bar in Washington has made great strides in encouraging pro bono efforts to help extend available services. While this support has been extraordinarily helpful, the need has always been recognized as being far in excess of the ability of private attorneys to respond. The Washington State Civil Legal Needs Study (September 2003), commissioned by the Supreme Court, documents the unmet legal needs of people of low and moderate means. This report sets forth the areas of greatest need as well as quantifying the continuing extent of unmet need for low-income people. The study calculated that, at that time, 88 percent of all such legal needs were not being met under the present system. Despite the pro bono contributions of thousands of lawyers in our state, it is painfully apparent that neither people living below the poverty line nor those of modest means — the working poor — can retain lawyers. In many instances, government regulations impose unrealistic financial restrictions that prevent the working poor from qualifying for the free legal services that are available in our state. With recognition of these realities, something needs to be done, and the enactment of the legal technician rule is a first step in addressing the problem. The rule and regulations create a framework in which trained and qualified non-lawyers could provide limited services charging fees much lower than attorneys.
The legal technician rule and regulations would benefit those who are not utterly impoverished but cannot afford to hire an attorney. It is doubtful that for people poor enough to qualify for assistance by legal-service programs — our poorest Washingtonians — the rule would be helpful in addressing the challenges identified in the Supreme Court's Legal Needs Study. Most of these individuals do not have enough money to keep up with the necessities of life such as housing, food, transportation, and health services, let alone afford to hire a lawyer or a paralegal. On the other hand, people who can afford a lawyer will always get one, given that a lawyer can do everything needed to represent a client and resolve a matter. Many lawyers, particularly in small or solo practices, charge people of limited means a relatively low fee, and that will continue.
Instead, the legal technician rule is designed to help those who cannot come up with even the reduced fees offered by some lawyers. These are people working minimum-wage jobs, seasonal jobs, or a patchwork of part-time employment in an effort to provide food for their families as well as housing, often substandard. When a legal crisis arises, they either must try to handle it themselves, without any understanding of the legal framework involved, or turn to unregulated "paralegals" or others offering their services. Increasingly, people of limited means are being victimized by unscrupulous individuals providing ineffective and sometimes unethical services to the desperate. These individuals claim to have the expertise to provide legal assistance, at a price. Although this situation has proliferated in several areas of practice, it seems most rampant with regard to family law and, in Eastern Washington, with unlicensed "notario" services.
With these circumstances in mind, the Washington State Supreme Court created the Practice of Law Board. Its responsibilities are twofold: to address the unauthorized practice of law and to make recommendations back to the Court as to circumstances under which non-lawyers may be involved in the delivery of certain types of legal and law-related services (GR 25 (a)). The Board developed the proposed rule for trained and tested "legal technicians," who would be certified to provide limited law-related services.
The Practice of Law Board has recommended that the people who qualify as technicians would be certified only for limited practice in certain specific areas of family law (RCW 26). The proposal has strict limitations as to the subject matter within Title 26 as well as the services that may be performed by the technician.
Should other areas of practice be recommended and subsequently approved by the Supreme Court in future years, the proposed rule and regulations provide the overall structure. The limitation on permissible tasks, and the education and testing requirements, will not be different for other areas of practice, although the specific subject matter permitted may differ with the practice area.
Legal technicians will be required to attend an approved course of study and thereafter pass an examination in the legal area of practice. Furthermore, in order to practice, a technician will be required to provide a variety of safeguards to consumers of the services, including entering into a written contract which permits rescission at any time, full refund of unearned fees, and return of all client documents. No one other than a certified technician can provide the service for the client. The street-corner offices or Internet sites where untrained people — often posing as paralegals — claiming to provide services of which they have little or no knowledge would be clearly outside of acceptable and legal practice.
The proposed legal technician rule incorporates the ethical standards applicable to lawyers and imports the same requirements for the handling of client funds that are imposed upon lawyers. All legal technicians must comply with all of the terms and conditions of the APR, except where the Rules of Professional Conduct are inapplicable. This is a far cry from the current unregulated practice by non-lawyers, in which there has been no enforcement of the rules that bind lawyers regarding such things as safeguarding client funds and documents, and abiding by the ethical precepts of law practice.
Legal technicians violating the ethical standards of attorneys, or otherwise attempting to circumvent the conditions under which they are permitted to engage in limited practice, would be subject to a structure of discipline, as set forth in the proposed regulations. A disciplinary process would be undertaken by Practice of Law Board designees, with final review by the Supreme Court. In this manner, the Court would maintain its ultimate authority for the appropriate limited practice, just as it has such final authority over attorney discipline.
Why, then, should WSBA members support the creation of the proposed legal technician rule and regulations? Because after years of trying to fulfill our professional responsibilities to address the enormous unmet legal needs of the poor and the near poor, we are not meeting the challenge. The problem is just too big for solution without supplemental resources born of creative thinking. Certified technicians will not, and should not, take the place of lawyers. We have the training and experience, the depth of knowledge, to reach for relief for our clients that paraprofessionals do not have. But just as a combination of nurses, nurse practitioners, and EMTs augment the resources available to patients of MDs, trained, tested, and certified legal technicians can supplement the resources available to the segment of the public that falls between free legal aid and those who have the resources to retain private counsel.
Legal technicians will be able to practice within the confines of a law firm or a nonprofit agency or perhaps even in a courthouse, where they would be available to provide the limited services for which they are trained — thus freeing up lawyers to provide the more sophisticated representation only they can offer. The rule also will permit technicians to provide limited service outside the confines of an agency or law firm. In no circumstance will legal technicians be able to represent clients in court hearings. But they will serve an important function in providing accurate information on court procedure, forms, and meaningful use of exhibits or witnesses. My experience tells me that judges who have to deal with unrepresented people will welcome this new resource. It will also be particularly appreciated by other judicial officers who are frequently faced with the dilemma of trying to assist a pro se party without giving legal advice.
In the May Bar News, WSBA President Stan Bastian correctly observed that, "Lawyers have a monopoly on the practice of law." This unique economic circumstance places a special responsibility on us. The enactment by the Supreme Court of the proposed legal technician rule and regulations will not eliminate the problem of the paucity of legal representation for those who cannot afford an attorney. But it can be one means of expanding resources so that attorneys may be used in the most efficient manner to provide the most urgent service and help their clients experience some positive aspects of our system of justice.
Gregory R. Dallaire is a member of the Access to Justice Board and chairs the Access to Justice Board's State Plan Oversight Committee. He was the founding director of Evergreen Legal Services in 1976. Before then, he managed legal services programs in Oakland, Seattle, and the state of Georgia. In 1985, he moved to the commercial law firm of Garvey, Schubert and Barer, where he was the managing director until his retirement in 2002.
