The Other Legal Professionals

Love may be the answer, but it may not be in the form of a lawyer.

As the legal profession struggles to reinvent itself and restructure how services are being provided, other legal professionals are being created in parallel. The State of Washington recently licensed its first batch of “Limited License Legal Technicians (LLLTs),” the first of its type in the country, though several states have already indicated they may follow their lead.

The Washington State Bar Association defines LLLTs as individuals who,

…are trained and licensed to advise and assist people going through divorce, child custody and other family law matters in Washington. Think of them like nurse practitioners, who can treat patients and prescribe medication like a doctor. Licensed Legal Technicians bring a similar option to the legal world, making legal services more accessible to people who can’t afford an attorney. While they cannot represent clients in court, Legal Technicians are able to consult and advise, complete and file necessary court documents, help with court scheduling and support a client in navigating the often confusing maze of the legal system.

The Washington Supreme Court adopted Admission and Practice Rule 28 in 2012 to create LLLTs following a 2003 study by the Task Force on Civil Equal Justice Funding which found that despite a high frequency of civil legal problems in low-income households, over 85% did not have any legal assistance. The Rule states,

The public is entitled to be assured that legal services are rendered only by qualified trained legal practitioners. Only the legal profession is authorized to provide such services. The purpose of this rule is to authorize certain persons to render limited legal assistance or advice in approved practice areas of law. This rule shall prescribe the conditions of and limitations upon the provision of such services in order to protect the public and ensure that only trained and qualified legal practitioners may provide the same. This rule is intended to permit trained Limited License Legal Technicians to provide limited legal assistance under carefully regulated circumstances in ways that expand the affordability of quality legal assistance which protects the public interest.

The State also created Limited Practice Officers (LPOs) under APR 12 to assist with documents in the sale of property, closing a loan, or extending credit.

Paralegals in Washington with sufficient experience, and who are able to pass the exam, have been grandfathered into the system and bypass the educational requirements. Seven of nine candidates passed the first LTTT exam on May 11, 2015 (all were women).

In Ontario, we retained the term paralegal and licensed them as a distinct legal profession in 2008. We were the first jurisdiction in North America to create a different type of legal profession, and have slightly more experience in doing so than those currently embarking on this journey.

In order to benchmark this new profession, the Retention of Women in Private Practice Working Group of The Law Society of Upper Canada examined movement within this profession in its early years by tracking change of status. A report commissioned by the Equity and Aboriginal Affairs Department released last month revealed women are leaving paralegal practice for work environments and professions with greater flexibility. Male paralegals are more likely to be setting up their own practice, and stay within the profession.

But the figure that is perhaps most insightful is that the majority of licensees are not practicing as a paralegal in a paralegal or law firm at all, and these numbers are rising. The report identifies a trend where paralegals appear to be leaving these firms and moving towards sole practice or positions outside of practice. Overwhelmingly these licensees were women, often over 40, and usually leaving in their first few years of practice.

A significant minority of licensed paralegals (13%) are completely unemployed, in the legal industry or otherwise. This is approximately twice the unemployment rate in Ontario generally, which is troubling because many of the paralegals who are graduates of accelerated programs already have a Canadian university degree (and sometimes a foreign law degree).

 

Change of Status Activity

 

Part of the challenge may be in the ways that paralegals are practicing the law. They are still operating bricks and mortar practices, with full staff and all of the trimmings which present challenges in creating net profits for small practices. High operating expenses means higher costs passed on to clients.

Shannon Achimalbe suggests that LLLTs may have similar difficulties in providing cost-effective legal services,

Their overhead costs might be just as high as that of a solo attorney with a shoestring budget.

The one competitive advantage LLLTs have is inexpensive education and lower debt burdens, which do not have to be passed on to the client. But Achimalbe questions whether they would actually assist with access to justice. Although initially they may service the files that lawyers don’t “want” (practice area or type of client), once established they have the ability to be more selective and also raise their prices.

One new LLLT has indicated she wants to double her previous wage (after operating costs). But for now, she’ll continue working in her same job at the law firm as a (unlicensed) paralegal. If the experience of paralegals in Ontario is any indication, their prices aren’t high enough to sustain a practice, and aren’t low enough to attract the thousands of unrepresented litigants in the province.

A distinction between LLLTs and paralegals which might make a difference is the scope of practice. Paralegals in Ontario are currently not allowed to work in the area of family law, which is the primary area of practice for LLLTs. Although some paralegals did some family law before becoming licensed, there is currently significant resistance against expanding their scope into this area as a regulated professional, but these perspectives appear to be shifting.

Steven Benmor, Chair of the Ontario Bar Association’s Family Law Section, was quoted in the Law Times,

Benmor sees a role in family law for professionals other than lawyers as long as they have the proper training, annual updates, and clear regulations.

“The big but is that they ought to be operating under the auspices of a lawyer,” he says.

The training of LLLTs, paralegals, and even lawyers, is ultimately what much of this comes down to. The ABA Task Force on the Future of Legal Education stated,

The delivery of legal and related services today is primarily by J.D.-trained lawyers. However, the services of these highly trained professionals may not be cost-effective for many actual or potential clients, and some communities and constituencies lack realistic access to essential legal services. To expand access to justice, state supreme courts, state bar associations, admitting authorities, and other regulators should devise and consider for adoption new or improved frameworks for licensing or otherwise authorizing providers of legal and related services. This should include authorizing bar admission for people whose preparation may be other than the traditional four-years of college plus three years of classroom-based law school education, and licensing persons other than holders of a J.D. to deliver limited legal services. The current misdistribution of legal services and common lack of access to legal advice of any kind requires innovative and aggressive remediation

As a lawyer who has taught and trained hundreds of licensed paralegals in the past few years, I have seen many advocates who are absolutely superb and in many ways better than my colleagues who are lawyers. But I have also seen a few who provide me considerable pause and raise concerns about harm to the public. Sam Wright outlines similar concerns for the new legal technicians,

There aren’t many barriers to entry for LLLTs, and ease of entry increases the potential that many LLLTs will give very, very bad advice and counsel that could do real harm. Plenty of associate’s-degree holders are plenty smart and capable of providing sound legal advice, but then again, I’d bet that plenty aren’t. And while plenty of lawyers are inept too, they must nevertheless possess some degree of intelligence and legal reasoning not to have been weeded out by law school and the bar exam.

In Ontario, we have responded to these concerns about the quality of licensees by introducing a substantive law exam, which will be introduced for the first time this summer. The previous exam focused primarily on professionalism and ethics, but there is a growing realization that all legal professionals still need a basic knowledge of the law for entry to practice.

The Morris Report also highlighted the need for more rigorous training for paralegals, in particular in evidence law and advocacy. The Law Society has released a new accreditation package in 2015, which requires more licensee involvement in training, higher levels of legal background and experience with education, and some connection to practice. Obtaining appropriate talent to teach in these programs means that tuition may go up in the long-term for paralegal programs as well, meaning these paralegal programs will already start moving more towards a law-school type of curriculum.

Paralegals in Ontario already receive mandatory training as part of their accreditation in the areas of legal accounting, practice management, and alternative dispute resolution, subjects which many lawyers never study in law school and often struggle with when setting up a practice. These paralegals may in fact be better positioned for sole practice from a business perspective than newly minted lawyers. Their major shortcoming however may be that they are learning to practice law like lawyers, and not like a different legal profession which can more easily incorporate innovative business practices.

Providing alternatives to lawyers is an important part of revamping how we provide legal services, but these services must still be competent. There are no shortcuts to justice, and finding the appropriate mixture between accessibility to the legal system and quality control in the public interest will not be an easy balancing.

 

Comments are closed.