Legal Technicians
Wednesday, April 2, 2008 at 11:43AM By Stan Bastian
This month the focus of my article is a little different than in the past. Rather than writing about a new development in the area of employment law, which is the focus of my law practice, I have decided to discuss a developing issue that is important to the legal profession as a whole. The issue is the growing and unmet need for legal services for low income clients and whether that need can be partially met by allowing non-lawyers to offer limited legal services.
The practice of law is regulated by the Washington State Bar Association (WSBA), which in turn is governed by the Washington State Supreme Court. Membership in the WSBA is required, which means that generally lawyers cannot practice law in this state unless they are members of the Bar Association. This also means that non-lawyers cannot practice law. Practicing law has always required a legal education, a license issued by the State Supreme Court and membership in the WSBA.
However, there is currently a proposal pending with the Supreme Court to change the rules. In fact, this proposal is tantamount to a revolution in the practice of law. It is known as the legal technician rule and it was developed in part to respond to the unfortunate fact that many people with moderate or low incomes simply cannot afford to pay for lawyers to help with their civil legal problems. Recent studies indicate that almost 90% of low income people who experience urgent civil legal problems must face those problems without any legal help or representation due to a lack of resources. Although poor people are constitutionally entitled to lawyers at public expense for criminal cases, this same protection does not apply to civil cases such as housing, government benefits, immigration, and family law. This is a burden not only to the people involved but to the court system.
The legal technician rule is an attempt to help solve this problem. If adopted, legal technicians would not be authorized to represent clients in court proceedings or during legal negotiations but they would be allowed to do the following:
Review, explain, and complete pleadings and forms;
Conduct legal research when supervised by a licensed lawyer;
Draft letters and pleadings, when supervised by a licensed lawyer;
Provide clients with self help materials and help complete the materials.
The relationship between legal technicians and the client will be governed by the same rules, expectations, privileges and considerations that govern the attorney-client relationship. The technicians would be regulated by a Commission appointed by the Supreme Court, but staffed and funded by the Bar Association. The educational requirements to become a legal technician would be less than those required to be lawyer. Instead of four years of college and three years of law school (required for lawyers), a legal technician would be required to at a minimum complete a 90 credit associate’s degree with a minimum of 45 credits in substantive legal courses. The technician would also be required to work for two years under the supervision of a lawyer. Finally, all potential legal technicians will be required to take an exam on general substantive and procedural law including ethics and the workings of the court system.
As currently recommended, the legal technician rule would be applied only to the area of family law. However, it is possible that in the future a recommendation may be made to extend it to other areas such as landlord/tenant issues and elder law.
It is not at all certain that the proposal will be adopted by the Supreme Court. It is opposed by many lawyers and legal organizations. The opposition seems to be focused on three arguments. First, the proposed rule does not require that legal technicians only work with low to middle income clients. Therefore, those most in need of low cost access to legal services, those falling under the low income category, would have to compete for the services of legal technicians on the same basis as individuals with more substantial financial resources.
The second argument against the proposal is that it is based on a flawed assumption that legal technicians can offer legal services at a lower fee than lawyers. However, like any other business, legal technicians would have to pay rent and salaries, purchase supplies and equipment and incur other expenses related to the operation of a business. In the end, it is very likely that legal technicians would be forced to charge fees very close to those charged by lawyers.
The third argument against legal technicians has to do with the quality of services offered. Legal technicians would have far less training and education than lawyers, yet the practice of law is a complex and complicated profession. Providing inaccurate or inadequate legal services or advice can lead to long-term and disastrous consequences. In the area of family law, bad legal advice can lead to the loss of custody with children, erroneous child support calculations, inequitable property divisions and the inappropriate issuance of restraining orders.
Other states are also studying this issue, for example Massachusetts, and it is possible that it will be adopted on a trial basis somewhere in the United States. In Washington, the Supreme Court will likely make a decision within the next 12-18 months. The proposal obviously generates strong opinions on both sides and it will be interesting to see what the Court decides to do. Stay tuned.
Stan Bastian is a partner at Jeffers, Danielson, Sonn & Aylward and is currently serving as the President of the Washington State Bar Association.