California and Oregon Task Forces Endorse Licensing of Nonlawyer ‘Legal Technicians'

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By Samson Habte

March 20 — Task forces convened by the California and Oregon bars separately issued two Feb. 13 reports that endorse licensing trained nonlawyers to provide limited services to low-income individuals who cannot afford to hire attorneys for advice on civil legal matters.

The proposals—which must be adopted by the California and Oregon bars and ultimately approved by the supreme courts in those states—revive a controversial idea that both jurisdictions rejected two decades ago.

The task forces cited Washington state's “Limited License Legal Technician” (LLLT) program as a potential model. Administrators of the Washington program—a pioneering initiative created by judicial decree in 2012—expect to begin licensing technicians this spring.

“Although contracting a LLLT would not be the same as retaining counsel, it offers the potential of helping to close the justice gap,” the California task force said in its report. The Oregon report echoes that sentiment, describing licensing nonlawyers as “one component of [the] overall strategy for increasing access to justice.”

Both task forces endorsed a key feature of the Washington program: a limitation on the practice areas open to the first licensed technicians, who initially will be authorized to assist clients with family law matters.

Opposition Expected 

The task forces also urged their state bars to establish education and certification requirements to ensure that technicians are competent, and to delineate scope-of-practice restrictions on the types of services technicians may provide.

Such guidelines would address concerns that torpedoed past efforts to establish nonlawyer licensing programs—including proposals in California and Oregon that died in 1991 and 1992.

The Oregon report said “changes in the legal profession” could lead to a different result today. “Most notably, the Task Force [is] cognizant of the fact that there are more people unable to afford or unwilling to pay lawyers now than when the last report was issued, and no adequate solution has been found,” it said.

But the Oregon report also acknowledged that “many members” of the task force were “not in support of any sort” of limited licensing program. It said bar authorities should also “expect that [the] program would be controversial in Oregon” because “licensing of legal technicians might have some impact on new lawyers' ability to obtain employment or develop solo careers.”

The California task force similarly conceded that it heard “opposing perspectives,” and it received numerous public comments from members of the bar who harshly criticized the idea of nonlawyer licensing.

One attorney who submitted a comment said the proposal would “give the veneer of legality” to “unauthorized, ill-trained practitioners who do more damage than good.” Another commenter said she was “astonished that [the bar] would consider actions that would be detrimental to the honest attorneys who are trying to make a living in California.”

Evergreen State Effect 

The California and Oregon task forces heard testimony from bar officials who designed the Washington LLLT program—a first-in-the-nation initiative that was created by judicial decree in June 2012, when the Washington Supreme Court adopted a “Limited Practice Rule” for nonlawyer technicians as part of a “narrowly tailored strategy” to expand legal services for low-income individuals. See 28 Law. Man. Prof. Conduct 416.

Robert Ambrogi—a Massachusetts attorney who has written extensively on the limited licensing issue—said the Washington program owes its existence to “the courage of the state supreme court,” and that judicial action will be critical to the success of similar proposals in California, Oregon and other jurisdictions.

“Keep in mind that in Washington, the state bar was opposed to [nonlawyer licensing] right up until the supreme court ordered it,” Ambrogi said in an interview with Bloomberg BNA. The Washington program, he added, could represent “the camel's nose under the tent” and give a boost to similar initiatives elsewhere.

Ambrogi said judicial support could help overcome the resistance described in a blog post by Toby Brown, the Chief Practice Officer of Akin Gump Strauss Hauer & Feld LLP, who despaired about the reaction to the LLLT issue from attendees at a recent gathering of the National Conference of Bar Presidents.

Writing on 3 Geeks and a Law Blog, Brown said he was discussing the Washington program with a panelist who had a hand in designing it, and that “things got ugly” when the floor was opened to questions:

[T]he audience focused in on the details of the LLLT program, trying to poke holes in it. This audience was made up of Bar Presidents and Executive Directors. These people are well positioned to drive change across the profession. But instead of talking about how they could adopt similar changes in an accelerated fashion, they were looking for ways to kill it.

“For a long time I have held out hope that the legal profession would step up and address the needs of the market: for both lawyers and clients,” Brown wrote. “After this experience, I have come to the hard conclusion: That is not going to happen.”

The Road Ahead 

The Oregon report will go to the state bar's Board of Governors, which will have to iron out some details that the task force did not address.

For example, while the task force recommended a pilot program under which the first licensed nonlawyers would be limited to assisting clients with family law matters, some questions regarding the activities technicians may perform were left unanswered.

In a section addressing topics “discussed but not decided,” the task force said the Board of Governors must delineate the “actual scope of activities Legal Technicians could perform; for example, should Legal Technicians be allowed to draft or choose forms for clients, and what, if any, role, should Legal Technicians be allowed to have in the courtroom?”

The California report leaves even more questions unanswered—in part because its recommendations address “access-to-justice” solutions that go beyond the limited license issue. In addition to promoting a pilot LLLT program, the report recommends that the bar:

• consider ways to “promote and incentivize limited scope representation”;

• support a “Civil Gideon” right in housing, domestic violence, family and immigration law cases;

• monitor developments in other jurisdictions with respect to the issue of whether to relax ethics rules that prohibit nonlawyer investment in law firms;

• launch pilot programs to explore whether certain proceedings—such as landlord-tenant cases—can be “redesigned to streamline the process, make it easier to use, and provide protection for the parties' rights”;

• launch pilot programs to provide volunteer court “navigators” to self-represented litigants; and

• study the impact that the student debt crisis is having on the ability of newly minted lawyers to provide services to low-income individuals.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

The California State Bar Civil Justice Strategies Task Force Report is available at http://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000013042.pdf.

The Oregon State Bar Legal Technicians Task Force Report is available at http://bog11.homestead.com/LegalTechTF/Jan2015/Report_22Jan2015.pdf.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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