Licensing Non-Lawyers to Practice Law – Sort Of?

The State Bar of California is now in the process of creating a task force to investigate launching a program to license non-lawyers to do some elements of law practice. Is this a good idea, or the beginning of the end of our profession?  A way to close the justice gap, or official sanction of the exploitation of those who cannot afford an attorney?

What are the options for licensing non-lawyers?

This idea had its genesis in Washington state, and is now underway in Utah, as well.  The concept is to create a second track for offering legal services to individuals.  The regulatory authority creates a path to education, licensure, and regulation, and those who go through the process, while not lawyers, are able to provide certain types of services to members of the public, in particular areas of the law. 

• Washington chose to focus on family law, where nationally about 80% of litigants go to court unrepresented.  In this arena in particular, litigants may wander lost, tying up the courts and getting only moderately effective rulings on their cases, if any.  They created a program they call Limited Legal License Technicians (or Triple-L T’s).  (Utah uses a different nomenclature, but in California we usually speak of this notion using the Washington acronym, as a tip of the hat to the state brave enough to be the first to dip a toe in this water.)  Applicants for the program must take specific courses for two years in community college, earning an Associates degree, and then take one year of classes at a law school.  These classes are not regular law school classes, however, and are designed specifically for the LLLT’s. There is, for example, a strong emphasis on how to complete family law forms, as well as the law underlying the forms.  (These skills are not usually taught in law school, though they certainly should be.)  The classes also include detailed explanations of what LLLT’s can, and cannot, do – they can complete forms, prepare pleadings, and advise clients on how to do so, but they cannot represent a client in court, and there are limits on subjects within family law that they may handle.  After completing these three years of education, the LLLT applicants must take an exam not unlike the bar exam, focusing on family law and family law forms.  Upon passing this exam, LLLT’s are licensed by the Washington State Bar, and subject to regulation by that bar just as attorneys are.
• Utah took this model on, but adopted it to more areas of law, including forcible entry and detainer cases and debt collection cases where the dollar amount at issue is not in excess of the statutory limit for small claims matters.
• In New York City, volunteers help clients navigate the city’s housing court and offer individual help to litigants without an attorney, These volunteers can even accompany them to courtrooms in Bronx, New York, Kings, and Queens County Housing Court and Bronx Civil Court.
• In Colorado, so-called “Sherlocks” assist self-represented litigants in finding pro bono services, apprise them of court rules, explain their legal options, and review documents before hearings to ascertain that they meet procedural requirements.
• Oregon is the most recent state to head in this direction, and is currently considering LLLT programming to license so-called paraprofessionals.

California has yet to define what such a program might look like here; this is part of the function of the task force it is building.

How is this different than Notarios or Legal Document Assistants?

Notarios are non-attorneys who nonetheless hang out a shingle and persuade low income litigants to pay them for legal help.  They are commonly called “notarios” because that term can be used to mean “attorney” in Spanish, but in English looks more like “notary” and thus saves them from being prosecuted for practicing law without a license.  Unfortunately, most notarios are unscrupulous and are take advantage of vulnerable people, commonly taking large sums of hard-earned money promising US citizenship or avoidance of eviction but then not delivering or, worse, waiving litigants rights and permanently worsening their situation.  LLLT’s are much different than this because they would be both educated and regulated, providing a ready tool for disciplining incompetence.

Many Legal Document Assistants (LDA) have paralegal education and experience. In California they are not the same as paralegals. Unlike paralegals, LDAs are authorized by law to provide legal document preparation services to consumers who are representing themselves in court, after complying with the registration and bonding requirements. Neither paralegals nor LDAs are permitted to engage in the practice of law. LDAs are not lawyers and do not offer legal advice, discuss legal strategies, answer questions of a legal nature, select forms for the consumer, or appear in court on the consumer’s behalf. They are professionals, qualified through education, training or work experience, authorized to assist consumers representing themselves in legal matters by preparing and processing the necessary legal documents.

Why is it being considered?

The State Bar of California recently formed a task force known as ATILS – Access Through Innovation in Legal Services.  The main thrust of this task force is to explore allowing non-attorneys to own legal services providers.  The concept is that this will incentivize big tech companies to enter the field and build tech solutions which will, among other things, make legal help more accessible and affordable.  The merits of this notion must be taken up at another time; at this moment, the State Bar is proposing to create a “regulatory sandbox” that would allow a highly controlled test of this idea. 

A very small part of the task force’s work was to resume the State Bar’s earlier consideration of the LLLT idea.  The ATILS Task Force endorsed further study of the idea, and hence the creation of (another) task force.  Of course, the chief reason to create a LLLT would be to increase access to legal help for low and moderate income people.  Those who largely need help with the paperwork associated with a legal case (and there are certainly many of those) could hire, presumably at a rate much lower than an attorney’s, a LLLT to offer help and advice.  One might expect, as well, that if there were a number of LLLT’s in a market, lawyers might expand their services to offer a lower-fee option for certain services, in order to compete. 

Pros and cons:

The pros to the LLLT idea are many, in my opinion.  As we all know, the legal system was designed to work best when both parties are represented by counsel, each thus able to present their case and complete all the necessary paperwork.  This is particularly true in family law where, in order to safeguard the critical interests at stake, many different forms must be accurately completed or else the court rejects the case or issues a long series of continuances.  Offering a regulated, educated alternative to lawyers would mean that more people could get legal help with this critical piece of the process.  And, as noted, lawyers might be expected to respond by creating a more robust spectrum of services. 

A coincidental side effect of the program would be as a job development program.  The LLLT program offers a career path from high school to a version of a law practice in only three years.  Later conversion of the LLLT license to an attorney license is also a possibility.  This might open the profession to more diverse applicants, in all senses. 

Of course the main objection to the LLLT plan is that it allows non-lawyers to practice law, without the supervision of an attorney.  How will we know if a LLLT exceeds their license? For that matter, how will the LLLTs know exactly where that line is?  There has been some anecdotal evidence in Washington that current LLLTs struggle with this. 

A more protectionist argument against this plan is that it will create more competition for the small firm and solo attorneys, whose practices may depend in large part on the bread and butter of completing forms for individual litigants.  While I am sympathetic to this reaction, our State Bar’s mission is not protectionism but rather public protection and access to justice, and the proposed plan would meet both goals. 

Washington ran into a different set of problems.  There are relatively few people who have gone through the education and licensing process.  Perhaps, the theory is, it is still a daunting process, and the market for LLLT services has not yet developed or looks too uncertain.  This is not an argument against it, necessarily, but suggests that this factor must be taken into account.