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July 2008The Washington State Supreme Court Should Decline to Adopt the Family Law Legal Technician Proposalby Mark A. Johnson and David S. Heller Lawyers, above all other professionals, should be able to debate and decide difficult issues without resort to fallacious arguments or personal attacks. Although the Practice of Law Board’s (POLB) Family Law Legal Technicians Program (FLLTP) is a contentious issue, it is appropriate to debate method and manner only; it is not appropriate to attack motives. Justice is our goal, and we can achieve justice only through reasoned and ethical debate. The Proposed Family Law Legal Technicians Program If the POLB’s proposal were adopted by the Washington State Supreme Court, it would represent a landmark change in the practice of law. It would create the profession of family law legal technicians (FLLTs), non-lawyer legal representatives who would be permitted to have autonomous offices, direct relationships with clients, and, at times, assist those clients in adversarial proceedings (including domestic-violence issues) in which the opposing party is represented by an attorney. They would be permitted to exercise independent legal judgment. The proposed rules would permit a FLLT to: 1) Ascertain whether the problem is within the defined practice area of family law, and, if so, obtain relevant facts, and explain the relevancy of such information to the client…. 5) Review pleadings or exhibits presented by the client from the opposing party, and explain the documents, and… (See, POLB Proposed Admission to Practice Rules, Exhibit A to Steve Crossland letter to Chief Justice Gerry Alexander, January 7, 2008; hereafter “Crossland Letter”; www.wsba.org/reporttocourt.pdf.) The Crossland Letter cites the Arizona Legal Document Preparers Program, implemented in 2003 by the Arizona Supreme Court, and the California Legal Document Assistant Program, instituted in 1998, as programs which have reduced the cost of obtaining divorces. (Ibid.) Proponents of the Washington FLLT proposal point to these programs in support of their arguments. However, it should be noted that the programs in Arizona and California give narrower authority to the non-lawyer practitioners than the Washington program would grant to FLLTs. The Arizona program permits certified document preparers (CDPs) to assist with completing pre-printed forms and providing general factual information. CDPs are not allowed to give case-specific advice nor exercise independent legal judgment (“…may not provide any kind of specific advice, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, or strategies…“). (See Arizona Code of Judicial Administration Part 7, Chapter 2, Section 7-208 F. 1 a-e.; Role and Responsibilities of Certificate Holders.) The California program allows legal document assistants (LDAs) to provide “self-help service to a member of the public who is representing himself or herself in a legal matter.” (Cal. Bus. & Prof. Code, Section 6400, subd. (a).) “Self-help” service is defined as: Completing legal documents in a ministerial manner, selected by a person who is representing himself or herself in a legal matter, by typing or otherwise completing the documents at the person’s specific direction. (Cal. Bus. & Prof. Code, Section 6400, subd. (d)(1)). Thus, unlike the proposal in our state, neither the Arizona nor the California program permits the exercise of independent legal judgment, case-specific advice, nor advice regarding necessary evidence. Although the POLB’s proposed rules are based upon the assumption that the knowledge, training, and legal judgment of a lawyer are not necessary in every family law matter, the POLB actually did recognize that many family law matters should be excluded from FLLT services or provided by FLLTs only under the “direct and active supervision” of a lawyer or after the FLLT’s work has been “reviewed and approved” by a lawyer. The list of excluded and/or supervisory-required services is, justifiably, broad, and includes divorces involving business property, pensions, and transfer of real estate. (For a complete list of permitted and excluded activities, see Crossland Letter, pp. 3–5.) The POLB thus acknowledges that attorney representation or supervision is necessary in many family law matters. But the concomitant reduction of FLLT income that would result from these practice restrictions militates against the probability that the program could attract a sufficient number of FLLTs to effect an appreciable reduction in the services gap. Also, given the number of tasks that must be performed under the direct and active supervision of a lawyer (who would charge for the work), the cost savings assumption itself is frail. Moreover, just as the POLB appropriately excluded FLLTs from representing clients in many family law matters, the POLB also chose to require FLLTs to be highly educated. A certified FLLT must graduate from an ABA-accredited (or FLLT Commission-approved) paralegal program of 90 quarter hours, and have an associate’s degree, a bachelor’s or higher degree, or a certificate in paralegal studies. Furthermore, depending upon the FLLT’s level of education, two or three years of experience as a paralegal or legal assistant is required. (Crossland Letter, p. 9.) Is it probable that many top-notch, college-educated paralegals would leave multi-year employment with a law firm to set up a legal technician office in a single, restricted area of law? Finally, the Washington State Civil Legal Needs Study, which was cited as support for the FLLTP in the Crossland Letter, identifies the need for legal services for the indigent (those at or below 125 percent of the Federal Poverty Level) as being the greatest in rural areas. As of March 20, 2008 (for the period July 2007–June 2009), the Arizona Supreme Court has certified 574 document preparers, almost all of whom are located in Arizona’s two major urban centers: Phoenix Metro and Tucson. Arizona’s CDP program has essentially no rural presence. (See www.supreme.state.az.us/cld/ldp.htm.) So in summary, the POLB envisions that a significant number of college-educated, law office-trained professionals will leave their jobs and head out into the country to work at low rates in a single area of law with significant restrictions upon the scope of their practice, for people of modest means. Even if that were to happen, it would not guarantee greater access to, or lower cost for, legal services. The proposed rule does not limit the fees FLLTs could charge, nor does it restrict them to representing people of modest means or those living in rural areas. This vision is neither realistic nor economically viable. WSBA Finances and the Access to Justice Mission Due to higher rent, well-warranted raises in employee salaries, and increases in employee pension contributions (over which the WSBA has no control, as its employees are enrolled in Washington state’s PERS program), the WSBA is facing an operating deficit for at least the next two years. In the accompanying Bar News articles supporting the FLLT proposal, POLB members state that the WSBA has “reserves of $6,000,000.” This assertion does not accurately convey the amount or purpose of the WSBA’s reserves. The money is in three funds: restricted, Board of Governors-designated, and unrestricted reserves. The restricted fund, the Lawyers’ Fund for Client Protection, is a trust solely for use with that program, and it cannot be spent on FLLT or any other project. The Board of Governors-designated CLE fund and section funds are reserved for operation of the WSBA CLE Department and the WSBA practice sections, respectively. The general fund reserve, as of April 2008, is a facilities reserve of $2.5 million, intended for facilities expenses and the anticipated costs of a move at the end of the current office lease; a capital reserve of about $500,000 for expenses such as equipment replacement and technology upgrades; operating reserves of about $1.5 million to cover necessary and unforeseen operating expenses; and approximately $250,000 in Board of Governors program reserves. There is not $6 million sitting in an account waiting to be spent. The current reserves are necessary, spoken for, and well-managed. From 2002–2007, the WSBA spent slightly more than $3 million on all access to justice programs (ATJ Board, statewide GAAP, Committee on Public Defense, Pro Bono Emeritus Programs, and the POLB). In fiscal year 2006–2007, the total spent on all access to justice programs was approximately $650,000 of an $18 million WSBA budget. In addition to its financial contributions to access to justice and other core programs, such as diversity and lawyer assistance, the WSBA has certain mandatory regulatory functions; the discipline system alone will consume over $4 million of the budget this year. Access to justice is, as it should be, at the pinnacle of the WSBA’s priorities, and our more than 30,000 members have invested heavily in this cause, both financially and via an enormous number of volunteer hours. These commitments must be maintained, but the WSBA’s financial resources are finite and under pressure. The POLB proposes to administer the FLLTP through a “Non-Lawyer Practice Commission.” Proposed Non-Lawyer Practice Regulations 3 F and G state that the WSBA “shall provide the Commission with an administrator (Commission Administrator) and any additional staff support as designated by the Executive Director of the WSBA” and that “[t]he WSBA shall pay all expenses reasonably and necessarily incurred by the commission pursuant to the budget and the expense policy of the WSBA.” Therefore, the WSBA would be required to set up and administer the program with WSBA staff and facilities, and fund it through WSBA member licensing fees. The necessary functions would include space, staff, and economic support for the proposed commission; character and fitness investigations; determining that each FLLT has the requisite financial responsibility; administering the FLLT licensing exam; setting up CLE programs; investigating FLLT ethical grievances; and conducting FLLT discipline hearings. The POLB’s estimate of $200,000 to start the program, and the assertion that the program will be self-supporting, are the POLB’s alone; the WSBA has not performed a fiscal analysis. The accuracy of the POLB’s fiscal impact estimate is questionable. The Statewide GAAP Program Is the Best Means for Reducing the Civil Legal Services Gap for Moderate-Income People The Greater Access and Assistance Project (GAAP) Committee is a standing committee of the Access to Justice Board, working with the Washington Young Lawyers Division (WYLD). The committee’s mission is to: “Establish a structure to support viable moderate means panels in Washington State.” (Emphasis added. See ATJ Board Annual Report, February 2008, page 8.) In 2007, the WSBA spent $20,000 for a GAAP feasibility study. The GAAP Committee looked at the successful local GAAP programs operating in Spokane and Snohomish counties and those being planned in Kitsap and Whatcom counties, and the committee is now developing a statewide program proposal. GAAP is intended to serve those who do not qualify for legal aid by connecting them to lawyers willing to work at reduced rates. Reduced-fee lawyer panels avoid all the restrictions of the FLLTP, and would not require the creation of an entire “shadow bar association” as FLLTP would. We should give the GAAP program the time to work and the dollars it needs to succeed. GAAP, not FLLTP, is the right way to provide legal services to people of modest means. Conclusion Equal access to justice should be our preeminent goal. Relegating people who do not qualify for civil legal aid, but who also cannot afford an attorney, to lesser, limited, non-lawyer representation is neither equal nor just. Our Supreme Court should not adopt the FLLT proposal. Mark A. Johnson practices plaintiffs’ professional liability and personal-injury law at the law firm of Johnson-Flora, PLLC in Seattle. He served on the WSBA Board of Governors from 2003–2006. He is WSBA president-elect and will take office as WSBA president in September. David Heller is the WSBA governor serving the Ninth Congressional District.
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