Unbundling Legal Profession: Are Limited License Professionals Answer to Colorado’s Access to Justice Gap?, 0217 COBJ, Vol. 46 No. 2 Pg. 67
| Author | Adam J. Espinosa, J. |
Access to Justice Series
Adam J. Espinosa, J.
The comments in this article reflect those of the author and not of other entities.
Meaningful access to justice is at the foundation of our justice system and paramount to the future of our profession and our courts. As former Justice Gregory Hobbs, Jr. noted, "Access to justice is the single most compelling reason for a legal profession"1 For years, lawyers, judges, courts, bar associations, and legal service providers have worked tirelessly to bridge the gap to meaningful access to justice. Despite these valiant efforts, the justice gap remains. In 2015, 75% of parties in domestic relation cases and 98% of responding parties in county court civil matters were self-represented in Colorado2 That translates to 221,227 Coloradans navigating our courts without representation in cases involving serious legal matters related to children, property, and housing in 2015.3 This cannot be acceptable to us as members of the legal profession; it is contrary to the oath each lawyer takes when admitted to practice "to never reject . . . the cause of the defenseless or oppressed."4
Colorado is not alone in the struggle to bridge the justice gap. In Washington state, a 2015 study on civil needs found that 76% of low-income people face their legal problems without help from an attorney.5 In 2015, 1.8 million New Yorkers navigated the New York state civil justice system without a lawyer.6 Over 80,000 Utahns went unrepresented in various civil and family law matters in 2014.7 The results of many civil needs studies throughout the country reflect similar results and show that many states are struggling with an ever-widening access to justice gap.8
How do we deal with this access to justice gap in Colorado? Efforts to address the needs with pro bono legal services and other creative lawyer-driven solutions have not made nearly enough headway. We need to consider whether we should unbundle our legal profession and allow other licensed legal service providers to handle discrete legal matters. We need to consider whether to create a program to allow such limited practice. The Colorado Supreme Court has made it clear that "legal service providers must be regulated in the public interest" and that a primary objective in the regulation of legal service providers includes "promoting access to justice and consume choice in the availability and afford ability of competent legal services."[9]
The time has come to consider alternative, nontraditional solutions to address the access to justice gap. This article examines one such alternative, limited license legal technicians (LLLTs). LLLTs are legal service providers who are trained, regulated, and authorized to perform discrete, limited-scope, limited-function legal tasks on behalf of clients. The LLLT concept originated in Washington state, which is currently the only state with such a program
The LLLT Prototype in Washington
Washington's LLLT program was developed after nearly a decade of investigation, review, public comment, and public hearings regarding this type of legal service provider. It was formally adopted by the Washington Supreme Court on June 15, 2012 with the passage of Washington State Admission and Practice Rule (APR) 28.10 The Court stated that the rule is "a limited, narrowly tailored strategy designed to expand the provision of legal and law related services to members of the public in need of individualized legal assistance in non-complex legal problems."[11]
The adoption of APR 28 and the subsequent development of the LLLT program in Washington include a regulatory framework similar to that governing lawyers, including specifc training and competency requirements, rules of professional conduct, continuing education, and a disciplinary system[12] APR 28 also includes regulations on the scope of LLLT practice and the financial responsibility requirements for LLLTs.13
Scope of Practice
Generally, LLLTs in Washington are authorized to perform the following legal tasks: • obtain relevant facts and explain their relevancy to the client; . inform the client of applicable procedures, including deadlines, documents that must be filed, and the anticipated course of the legal proceedings;
• inform the client of applicable procedures for proper service of process and filing of legal documents;
• provide the client with approved self-help materials or materials prepared by a lawyer;
• review documents or exhibits that the client receives from the opposing party and explain them to the client;
• select, complete, file, and effect service of approved forms and advise the client of the significance of the forms to the client's case;
• perform legal research and draft letters and pleadings, if the work is reviewed and approved by a lawyer;
• advise a client as to other documents that may be necessary to the client's case and explain how those documents or pleadings may affect the client's case; and
• assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.[14]
Before assisting a client, LLLTs are required to determine whether the client's legal issue is within the narrowly defined scope of the LLLT's licensure. If not, the LLLT has an affirmative duty to inform the client, in writing, that the issue is beyond the authorized scope of the LLLT's practice and that the client should seek the services of a lawyer.15 Among other prohibited acts, the LLLT may not negotiate the client's legal rights or responsibilities or represent a client in court proceedings.16 The LLLT rule further limits the LLLT's practice area to domestic relations matters, including child support modification actions, dissolution actions, domestic violence actions, and other related matters with specific limitations.17
Recent developments in the LLLT program in Washington include an affirmative vote to include LLLT members as part of the Washington State Bar Association (WSBA), with a seat on its Board of Governors.18 Also, on September 29, 2016, the WSBA Board of Governors unanimously adopted a resolution supporting the consideration of increasing the practice areas for LLLTs, and the exploration of rule changes to allow LLLTS to appear in court in a limited fashion and negotiate on behalf of clients within appropriate limitations.19
Application and Licensing Requirements
The LLLT application and licensing process typically takes three years. To be considered for licensure, applicants must:
• be at least 18 years of age;
• be of good moral character and demonstrate fitness to practice as an LLLT;
• have an associate level degree or higher;
• complete 45 credit hours in core curriculum instruction in paralegal studies, which includes courses in civil procedure; contracts; interviewing and investigation techniques; law and legal process; law office procedures and technology; legal research, writing, and analysis; and professional responsibility;
• complete 15 credit hours of instruction in an approved practice area developed by an ABA-approved law school;
• acquire 3,000 hours of substantive law-related work experience supervised by a licensed lawyer;
• pay the application and examination fees;
• show proof of financial responsibility;
• pass an examination on the core curriculum classes;
• pass an ethics examination; and
• pass a practice area examination.[20]
LLLTs by the Numbers
Currently, there are 20 licensed LLLTs practicing in Washington21 In addition, 6 LLLT applicants have passed their examinations and are currently completing the 3,000 hours of substantive, supervised law-related experience; 23 LLLT applicants are preparing for the next licensing exam; and 21 LLLT students are in the practice area education classes. The WSBA estimates that an additional 100 to 200 students are completing the core curriculum education classes and are in the pipeline to become LLLTs.22 The cost of completing the three-year LLLT program is estimated to be $14,400, which includes the costs for the associate degree and core curriculum classes, the practice area classes, examination fees, and license fees23
Nine of the licensed LLLTs in Washington work in law firms and 11 own independent LLLT firms. Two of the licensed LLLTs work for themselves and for a law firm under a mixed practice model LLLTs are reporting that they use technology, networking, and service delivery innovation to grow their practices in their new marketplace. They report using form-driven technology to maximize efficiency in service delivery, on-the-go home service, and referral networks from local attorneys and legal aid services24 The LLLTs in Washington...
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