It was a bold idea, one that might well have bridged the gap between the high cost of legal representation and the inability of many to pay the price for the banal requirements of legal advice and assistance to perform so many common tasks. And yet, Washington State’s attempt to make Limited Licence Legal Technicians, or 3LTs as I called them, a thing died.
The reasons are somewhat speculative, as there is no empirical study explaining the problem and the rationalizations are driven by political agendas, those determined to create a lesser tier of legal representation to provide “Access to Justice” (A2J) blaming external causes rather than an inherent failure of the plan.
But Washington State’s decision to end the program was pretty straightforward. There was neither demand nor supply, as nobody wanted to become a 3LT because nobody wanted to use a 3LT. There was no “sweet spot” between what it took to obtain a limited license, cost and time-wise, and a public willing to pay for the services on the back end.
Part of the problem was that people didn’t know about or appreciate the existence of lawyer-lite as a legitimate profession. Part of the problem is that it would take time, probably quite a bit of time, before people trusted 3LTs enough to embrace them. But that meant that people had to choose to train as 3LTs, become licensed, open up shop and wait around for as many years as it took for people to call. If they ever called.
And then they were limited in what they could charge for their services, since it made no sense to go to a 3LT if it was going to cost anywhere near the price of a real lawyer. That was the point, that it would cost far less and be accessible to those who couldn’t afford, or were too cheap to pay for, a real lawyer. This meant that becoming a 3LT was more a matter of public service and charity than feeding the kids. Inexplicably, not a lot of people were into that sort of thing. Go figure.
Even though the idea died in Washington, academics who earned a sweet paycheck anyway and the unduly passionate who join bar associations to make the world a better place have persisted in pushing the idea that A2J can be fixed by tweaking who can deliver legal services. The California bar latched onto this idea, because they are so very hip and empathetic. It started out as so many things in California do, as the worst of the stupidest of ideas, doing away with the requirement of being a lawyer to practice law, to allow non-lawyers to practice law and to own law firms. The argument for it was “but people need it.” The arguments against it eluded the passionate voices of the California bar.
California has since refined its scheme to limit its scope somewhat and has made a new proposal.
The State Bar of California’s Board of Trustees on Thursday gave its preliminary blessing to a proposed “paraprofessional” program by voting to gather public comment on the plan. The public will have 110 days to weigh in on the proposal, which if adopted has the potential to jumpstart the fledgling movement behind legal paraprofessionals, or limited license legal professionals, as they are sometimes called.
When first raised, the California bar didn’t make much of an effort to let their bar know that it was happening, recognizing that lawyers were likely going to be against the scheme for reasons both principled and not. After all, this was going to cut into their business by diverting clients to non-lawyers, and contrary to the assumptions that lawyers all make oodles of money, there are a lot of fully-licensed lawyers struggling to make ends meet.
Once the California bar became aware of what their guild association was up to, they expressed their “doubts.” The bar then commissioned a 1,500 page report* to justify its plan.
Under the proposal, paraprofessionals would be limited to offering services in the areas of consumer debt; employment and income maintenance; family children and custody; and housing. They would not be eligible to provide criminal legal services except for expungements. And they would be limited to specific functions within those areas. Within the employment category, for example, paraprofessionals would be able to handle unemployment and public benefits proceedings. Paraprofessionals would be allowed to appear in court under the current proposal but would be barred from handling jury trials.
What would it take to become a “paraprofessional,” besides a much better title?
Under the California proposal, paraprofessionals would have to complete a J.D. or LL.M, or have completed a paralegal program or be a qualified legal document assistant. They would have to undergo coursework covering court and ethics basics and legal topics specific to their practice areas, as well as 1,000 hours of practical training, testing, and a moral character evaluation.
The program, which the working group estimates would cost $1.65 million to launch, would be overseen by the California Supreme Court, but day-to-day administration would fall to the state bar. Paraprofessionals would come under a disciplinary system similar to the one that governs licensed attorneys.
The new plan is far better than the original knee-jerk scheme, but that doesn’t mean it will fly. The first question is why anyone with a J.D. or LL.M. would become a para rather than a lawyer, but that’s likely because California has a host of unaccredited law schools that churn out J.D.s who can’t pass the bar and become lawyers. But will the requirements for paras suffer from the same problem as the 3LTs of Washington State, too much work to justify the blind risk of a career on the other end, and even if there’s a future as a para, will it be sufficient to earn a living, run a parapractice, survive?
From the side promoting alternatives, who see the A2J problem under the syllogism that “something must be done,” there is a deliberate myopia that prevents them from considering the question “why would anyone want to do this?” I don’t doubt that if crafted properly, limited to the many legal functions that are mostly perfunctory and clerical such that they can be more than well done by non-lawyers, this has the potential to be great for people whose money needs to buy their kids food rather than pay a lawyer to draft a simple will. Indeed, that’s why I proposed the idea that was suspicious stolen by Washington State when they created 3LT.
But if they build it, will they come? The evidence so far suggests that the A2J field of dreams has neither players nor ticket holders. Maybe California will make this happen where Washington State could not. Or maybe, like so many aspirational progressive ideas, the theory sounds wonderful but the reality won’t work.
*I haven’t read the 1,500 page report because I would rather stick needles in my eye.
No comments:
Post a Comment