Paralegals and the Access To Justice: Washington's Limited License Legal Technicians give us Food for Thought.
Thursday, June 13, 2013
- Organization: Tulsa Lawyer June 2013 - TCBA Publication
In late 2004, the Oklahoma Supreme Court created an Access to Justice Commission; the nine member Commission includes representatives of the judiciary, Oklahoma Bar Association and Bar Foundation, law schools, legislative branch, and governor. Like the Bar Association’s Access to justice Committee created in 2003, the Commission is charged with evaluating the public's access to the justice system.
Paralegals play an important role in providing affordable Iegal services and greater access to the legal system to the public, a fact recognized by the Oklahoma Bar Association and the ongoing work of its Paralegal Committee. Oklahoma has long been a leader in the developing roles of paralegals, and Tulsa is the home to two of the largest organizations in the country representing the interests of legal professionals, including legal secretaries, legal assistants, paralegals, and legal administrators: the National Association of Legal Assistants (NALA) and the National Association for Legal Professionals (NALS). Members and leaders of these organizations are active in their communities, local professional organizations, and county bar association paralegal committees. It is therefore reasonable to assume that any review of the public's access to the justice system will examine the role of paralegals.
Washington Expands the Role of Paralegals
In 2001, The Supreme Court of Washington appointed a Special Task Force on Civil Equal Justice Funding to assess the civil legal needs of low-income individuals and to recommend ways the state might help to meet those needs. The Task force conducted The Civil Legal Needs Study (the "Study") that examined the best practices identified in both a national study conducted by the American Bar Association in 19943 and a study conducted in the state of Oregon in 2004. The Task Force also commissioned a field survey of in-depth interviews, similar to that done for the Oregon study, and a telephone survey of randomly chosen households, similar to that done by the American Bar Association. Study results indicated that civil legal needs in low-income populations were not being adequately met. One of the major reasons given by the Study participants for not seeking legal assistance was the lack of affordable legal services. The Study found that this lack of affordable services led to the creation of a secondary market of unregulated, untrained, and unsupervised legal practitioners. The Study further found that this market was harmful to the interest of clients and the public, both of which benefit from high quality civil legal services provided by qualified, regulated, and supervised practitioners of the law.
The results of this study prompted The Supreme Court of Washington to adopt Admission to Practice Rule 28, ("APR 28") "Limited Practice Rule for Limited License Legal Technicians'' in September 2012. The purpose of the rule is 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." This rule allows legal professionals who meet certain criteria to provide limited legal assistance and advice to individuals under specific strict guidelines set forth in the rule.''
Washington's APR 28 defines a Limited License Legal Technician ("LLLT") as "a person qualified by education, training and work experience who is authorized to engage in the limited practice of law in approved practice areas of law specified by this rule and related regulations." The rule goes on to clarify that [t]he legal technician does not represent the client in court proceedings or negotiations, but provides limited legal assistance as set forth in this rule to a pro se client."
The Washington LLLT candidate must pass an exam administered by the Limited License Legal Technician Board. The exam covers such topics as rules relating to the attorney-client privilege, procedural rules and substantive law issues, and the rules governing the professional conduct applicable to LLLTs.
In order to qualify for the exam, the applicant must first have obtained specific education, work experience, and in some cases a paralegal or legal assistant certificate. The applicant must also have completed at least 20 hours of pro bono legal service in Washington within 2 years of taking the LLLT exam.
Upon passing the exam, the candidate must also show that he/she is financially able to satisfy any possible damages that could be suffered by a future client because of the actions or omissions of the LLLT.
Scope and Limits of Practice
Under WAR ADMIS APR 28(F), an LLLT may:
1) Obtain relevant facts, and explain the relevancy of such information to the client;
2) Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;
3) Inform the client of applicable procedures for proper service of process and filing of legal documents;
4) Provide the client with self-help materials... which contain information about relevant legal requirements, case law basis for the client's claim, and venue and jurisdiction requirements;
5) Review documents or exhibits that the client has received from the other side and explain them to the client;
6) Select and complete forms that have been approved by the State of Washington...and advise the client of the significance of the selected forms to the client's case;
7) Perform legal research and draft legal letters and pleading documents... if the work is reviewed and approved by a Washington lawyer;
8) Advise a client as to other documents that may be necessary to the client's case, (such as exhibits, witness declarations, [etc.] and explain how such additional documents or pleadings may affect the client's case;
9) Assist the client in obtaining necessary documents, such as birth, death or marriage certificates.
A contract must be the first step to a LLLT-client relationship. The contract must specifically explain the services to be performed, the fact that the LLLT is not a lawyer and may only provide limited services, a clear statement about the LLLT's responsibility to protect the client’s confidentiality, and a statement allowing the client to terminate the working relationship at any time, entitling the client to a full refund of all unearned fees.
A Washington LLLT may not collect or retain fees for services not yet performed, advertise their services in a way that may lead a potential client to believe they are qualified to render services not allowed under APR 28 or negotiate a client's position or legal rights with another individual.
What Was the Washington Supreme Court Thinking?
The Supreme Court of Washington reviewed the Civil .Equal Justice Funding Task’s Force findings, and comments both supporting and opposing the rule. In its June 2012 Order, the Court explained its rationale for adopting APR 28:
The practice of law is a professional calling that requires competence, experience, accountability and oversight. Legal License Legal Technicians are not lawyers. They are prohibited from engaging in most activities that lawyers have been trained to provide. They are, under the rule adopted today, authorized to engage in very discrete, limited scope and limited function activities. Many individuals will need far more help than the limited scope of law related activities that a limited license legal technician will be able to offer. 111ese people must still seek help from an attorney. But there are people who need only limited levels of assistance that can he provided by non-lawyers trained and within the framework of the regulatory system developed by the Practice of Law Board. This assistance should be available and affordable. Our system of justice requires it.
See Supreme Court of Washington, In the Matter of the Adoption of New APR 28 - Limited Practice Rule for Limited license Legal Technicians, NO. 25700-A-1005, June 15, 2012 Order.
Asking the Right Questions in Oklahoma
As we examine the legal needs of Oklahomans, care must be taken to determine whether or not the civil legal needs of Oklahoma’s moderate to low income residents are being met. In so doing, any studies undertaken should ask questions about the roles non-attorneys play in providing access to legal justice, including but not limited to : 1) what extent, if any, is a secondary market of unregulated, untrained, unsupervised legal practitioners serving presently unmet legal needs; 2) how can paralegals further assist the bench and the bar in providing affordable legal services and greater access to the legal system to the public; and 3) can paralegals play a role in making the practice of law an economically viable profession for attorneys entering a very competitive profession.
A variety of solutions may be required to assure that our justice system affords Oklahomans access to civil legal services provided by qualified, regulated, and supervised practitioners of the law. These solutions might include the voluntary certification of paralegals, or perhaps the adoption of a rule analogous to Washington’s APR 28. Then again there may be other, more effective means of meeting any gaps between the need for and availability of affordable, competent legal services.
What is clear is that Oklahomans need, and deserve, a system of civil justice that is unrivaled in quality, affordability, and accessibility. Our system of justice requires it.