When UPL accusations against lawyer paraprofessionals are just protectionism
Last year, the legal profession continued to protect the delivery of legal services with multiple state bar ethics decisions negatively impacting legal service providers Avvo, LegalZoom, and Rocket Lawyer. As I outlined last time, 80 percent—or 4 in 5 Americans—cannot obtain legal help. In most industries, this would be seen as a massive market opportunity for existing providers.
In addition, I doubt you would hear arguments against other service providers that sound like protectionism. Yet, alternative legal services companies still operate fearful of being accused of the unauthorized practice of law or other ethical violations as they attempt to close the justice gap. In fact, UPL issues were the genesis of the Limited License Legal Technician program. It’s time to embrace alternative delivery by removing barriers masquerading as ethical issues or provider ability accusations and refocus the discussion on client demand, not attorney supply.
Last fall, I spoke with Steve Crossland, who in 1998 led the Committee to Define the Practice of Law that created Washington’s LLLT. According to him, as the committee explored how to quash the UPL, it decided to go beyond just defining UPL and instead “changed our perspective to meet the needs of the consumer.” He described the approach as a “walk around the table to view the law from the consumer’s point of view.” The rigor and client-centric nature of the LLLT program draws from Steve’s leadership, and today, the LLLT Board is looking for a former LLLT client to join.
Steve graduated from law school over 40 years ago and was able to set up his solo practice in Cashmere, Washington, without one hour of prior practice or supervised training. In theory, he could have represented a client in court that very first day. In contrast, the LLLT program has strict requirements, including 3,000 hours of supervised training plus rigorous educational obligations on subjects such as ethics and law practice management. The idea that paraprofessionals cannot ethically handle their scope of practice is unfounded.
LLLTs like Laura Genoves of Washington Family Law Tech, takes great pride in not only providing service but also educating “both attorneys and the public about what we are able to offer.” Laura prefers to work with the low-conflict client who is working amicably with a spouse. As for ethics, Laura comments: “The LLLT Rules for Professional Conduct parallel the lawyer RPCs closely and as part of licensing, passing an ethics exam is required. Each candidate must be fingerprinted and pass a character and fitness test to even sit the exam. In addition, since this is a fairly new program, none of those currently licensed want to jeopardize the future of legal technicians in our state.”
All the LLLTs that I interviewed, including Priscilla Selden of Columbia Valley Legal Technician Services, commented that they are very careful to stay within their scope of service, referring work to attorneys when necessary. However, LLLTs are carving out a valuable niche, as Priscilla outlines:
“The initial discomfort I had telling clients I couldn’t do X in their case has given way to a new vision of the service I provide: First of all, of course, I am faithful to my practice rules. I evaluate cases before I agree to engagement, and have a comprehensive conversation with the client to minimize misunderstandings. I have also come around to the view that, along with our reduced cost, there is a benefit to our clients—who are still pro se—in engaging us, even given our limited scope: the individual must be more engaged in his/her matter than the usual attorney/client relationship, which can be empowering and edifying, I believe.”
Mike Moceri has a small family law firm with himself and two associates with a tagline of “making a difference, one person at a time”—an appropriate client-centric mantra. Christine Camper is currently completing her LLLT training at Moceri’s law office. When I spoke with both last fall, they were positive about the opportunity to create a full-service family offering for moderate-means clients, including paralegals, LLLTs, and, when required, attorneys. For those cases within LLLT scope, the paperwork can be done by an LLLT without supervision, and the clients’ advice is then handled—again without involving any lawyers. If a LLLT works within a firm, then when they hit the top of their license, a firm attorney steps in to provide uninterrupted client service. It’s a win-win for clients and LLLTs. The whole idea that the program can already be deemed is a failure is an “urban myth,” according to Mike, Christine and Steve Crossland.
In my research I came across a January 2015 ABA Journal article covering a 2012 town hall meeting for the then-proposed LLLT Rule, where a lawyer was quoted as follows:
“This rule is in my view a feel-good rule … all we’re providing is access to injustice, because the class of individuals described is not going to have the competency to actually do for the poor what needs to be done. Just because you’re poor doesn’t mean your legal problems are simple.”
This encompasses both the fear of and the resistance to change, as well as the lack of understanding of the clients’ needs, including the actual market to be served by LLLTs. The quote also demonstrates the protectionism and the underlying “LLLT will take work from lawyers” complaint that continues today.
First, as Washington State Bar Association Executive Director Paula Littlewood explains, the market to be targeted is “the moderate-income consumer (note, that is a family of four making $98,000 per year).” So not the poor, and certainly with LLLT requirements exceeding what a law student would have in terms of training, it’s no surprise that many interviewed commented that LLLTs are more qualified than new attorneys. With 3,000 hours of actual family law paralegal experience with Washington firms, I wholeheartedly disagree that the notion that only a J.D., after three years of law school, is prepared to serve clients. (Full disclosure: I have a J.D. and would not be comfortable, even if licensed in Washington state, with taking on any family law matters).
Next, this type of superiority is usually a downfall in a free market, and with the paraprofessional now here to stay, the legal market is ethically open. Attorney Forrest Carlson of Assemble Law Group put this inadequate services issue in proper context:, “I don’t honestly believe that the public is going to be harmed by LLLTs (given their current scope of authority) any more than clients are occasionally harmed by attorneys. I know several LLLTs, and they are capable, intelligent, and deeply caring people. It’s kind of insulting to insinuate that they can’t possibly learn enough law with all their education requirements to be able to help pro se family law litigants fill out mandatory forms.”
Jordan Couch of Palace Law, provides an alternative view which supports the creation of more areas for LLLTs and less-than-J.D. practitioners: “The more of my work I can automate and pass off to others at a lower cost, the more time I get to spend doing all the things I love about practicing law. No lawyer would say that hiring a receptionist or a paralegal takes work away from them—why should LLLTs be any different? As a lawyer, my goal is to always be doing the highest-level work possible. I want to spend as much of my time as I can be analyzing new areas of the law and fighting for my client’s rights in the courtroom.”
Helping people with complicated processes and forms is something that the professions should delegate to alternative providers and paraprofessionals. Again, this will not take away work from attorneys as the targeted clients cannot afford an attorney. And as Steve Crossland mentioned, if the lawyers could do all the work, we would not have LLLTs.
It’s time to move past the notion that only lawyers can provide basic legal assistance country-wide. A good friend of mine in the medical industry read my prior column and I think she nailed the reason for the protectionism: money. However, I firmly believe that there is so much business to be had, that if lawyers can open their minds to the collaboration discussed above, we can both expand services and meet client needs. However, the LLLT program needs to scale and frankly, we need to shift focus to client education and marketing. More next time on activity in other states and how paraprofessionals, including LLLTs, can leverage good business principles to succeed.
Mary E. Juetten, CA, CPA, JD is founder and CEO of Traklight. In 2015, Mary co-founded Evolve Law, an organization for change and technology adoption in the law. She was named to the ABA’s Legal Technology Resource Center 2016 Women in Legal Tech list and the Fastcase 50 Class of 2016. She is the author of Small Law Firm KPIs: How to Measure Your Way to Greater Profits. She is always looking or success stories where technology has been used to bridge the justice gap, from pro-bono through low-bono to non-traditional legal services delivery. Reach out to her on Twitter @maryjuetten.