What’s the Future For Limited Legal Liability Technicians?
Across the country, states argue over purpose and inequality in access to justice

by Avery Martinez
Ralph Carr Judicial Center

Editor’s Note: This article was updated on Sept. 17 to remove a comment that misconstrued the status of Colorado’s limited license legal technician program. The article was also updated to include a comment  from the Colorado Supreme Court attorney regulation counsel, regarding the status of a program in Colorado.

Multiple states have approved various forms of nonlawyer legal service programs in their jurisdictions to improve access to legal services. While they go by many names, such as limited license legal technician or licensed paralegal practitioner, the intent of the programs is the same — to offer affordable legal services to those who may not be able to afford an attorney.

States from New York to Washington have launched such programs, and now some are looking to cancel theirs. Colorado has had discussions in the past about the possibilities of nonlawyer legal practice, but so far, no program exists.

Dan Sweetser, the deputy executive director of the Colorado and Denver Bar associations and interim executive director of CBA Continuing Legal Education, said the last real activity in the area was around 2016. After much research, the CBA had taken the position that this kind of program was not such a good idea, and that he was unaware of any further action on the topic.

Washington was the first state in the country to offer a non-lawyer practice program, according to the Washington State Bar Association’s website. The legal services option was designed to help meet the needs of those unable to afford the services of a lawyer.

This “limited license legal technician” or LLLT, is licensed by the state Supreme Court to advise and assist people going through divorce, child custody or other family law matters in the state. These legal techs advise and consult with clients, file and complete court documents, assist pro se clients in certain hearings and advise and participate in mediation, arbitration and settlement conferences.

Colorado had explored options for a similar program. As previously reported by Law Week, in December of 2016, the focus shifted from researching the LLLT program to New York’s Court Navigator program. Colorado Supreme Court Attorney Regulation Counsel Jessica Yates said in a July email that a group is “in the early stages of discussing the potential of allowing paralegals to have more authority in domestic relations matters.”

The Navigator program was launched in 2014 to support and assist “unrepresented litigants” in specifically landlord-tenant and consumer debt cases, according to the New York City Courts website. Court Navigators are specially trained and supervised non-lawyers who provide general information, written materials and one-on-one assistance to litigants and can accompany litigants into the courtroom in several of NYC’s boroughs.

The program is similar to the Self-Represented Litigant Coordinators, or Sherlocks, already implemented throughout Colorado, Sweetser said.

Elsewhere in the nation, programs are starting up. Just last month, the Arizona Supreme Court voted to reform regulations allowing for more innovation and to make legal services more affordable while continuing to protect the public, according to an Arizona Supreme Court press release.

The court approved modifications to rules regulating law practice, which allowed for two substantive changes: elimination of a rule prohibiting fee sharing and prohibiting nonlawyers from having economic interest in law firms and the second a licensure process allowing nonlawyers to provide legal services to the public, including attending court with their client. These nonlawyers are called “Legal Paraprofessionals” or LPs.

LPs are compared to nurse practitioners in the medical field, according to the Arizona release. Again, those who wish to become LPs must meet education and experience requirements, pass a professional abilities exam and pass a character and fitness process. Those who are successful would become “affiliate members” of the state bar and subject to the same ethical rules and discipline processes as attorneys.

Denis Fitzgibbons, the president of the State Bar of Arizona, said in a statement that it was ready to assist the state Supreme Court in implementing these changes in a way that protects the public, promotes innovation in provision of legal services and enhances access to justice. The rule is effective Jan. 1.

In Utah, a 2018 rule approved by the state Supreme Court created an exception to the practice of law for an “LPP,” or Limited Paralegal Practitioner. An LPP is only permitted to assist clients in practice areas where they are licensed, and the possible practice areas are limited to specific family law matters, forcible entry and detainer and debt collection matters under the statutory limit for small claims cases.

Under the rule, LPPs can enter into contractual relationships with a natural person, not corporations, interview clients, assist in completing forms and documents to support those forms, review documents of another party and explain them to the client and explain court orders to clients.

However, unlike Arizona, the LPP may not appear in court and cannot charge contingency fees. They are able to own their own firms, non-controlling equity interest in firms with attorneys and use the courts’ e-filing systems.
“There will be no pro hac vice admissions and no reciprocal licensing, at least for the time being. They will be required to have trust accounts and will have the obligation to provide pro bono services,” the Utah Courts website states.

While many states are creating LLLT type programs, the novel program in Washington is on its way to being shutdown.

The state Supreme Court sent a letter in June stating its decision to “phase out” the issuing of new LLLT licenses and allow those in the pipeline for licensure through July of 2021, according to the state bar website.

The letter explains that the program was created in 2012 to respond to the needs of Washington residents unable to afford a lawyer. The program is described as innovative, however, the costs of the program and the “small number of interested individuals” led the majority to determine the LLLT program “is not an effective way to meet these needs” and voted to sunset the program.

The letter noted that the majority had rejected a request from the LLLT board to expand the practice areas and proposed rule revisions.

Justice Barbara Madsen sent out a letter of dissent the same day, pointing to the fact that the court made the decision at a single meeting without comment or questions from LLLT license holders, practitioners or the public.

In her letter, Madsen said that LLLTs in Washington are qualified by education, training and work experience in specific subject areas. Further, the license was created by the work of thousands of hours for one purpose — “to rectify a simple truth: that access to justice in this country is not equal.”

Madsen points to the 2003 Civil Legal Needs Survey which affirmed that nearly 80% of low income and nearly 50% of moderate-income Americans “cannot access or afford legal services.”

The state’s program was crafted and offered licenses since 2012, according to Madsen’s letter.

“I recall this history in order to illustrate the depth of the court’s misunderstanding in eliminating the LLLT license. Not only is the LLLT not simply a ‘program’ that was easily created, and just as easily paused and canceled as budgets — or attitudes — permit, the LLLT is an independent legal license,” Madsen wrote.

Another letter was sent in July, updating the decision to sunset the program including dropping the number of required substantive law-related work experience for licensing from 3,000 to 1,500, and candidates have until 2022 to complete their work experience under the supervision of a lawyer.

Colorado’s experiment with its own program has gone through an accelerated version of the rise and fall seen in other states. The state Supreme Court began exploring options in 2015, but the CBA Family Law Section opposed it, citing potential harm to consumers outweighing any benefit and that such a program would harm newly licensed and young Colorado attorneys.

 

This article appears in the Sept. 7 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.