Photo of Washington State Capitol by Rachel Samanyi (Flickr/Creative Commons)

Washington State Experiments with Legal Technicians

This May, after completing three semesters of legal education, Angela Wright and six others passed an eight-hour licensing exam, moving one step closer to becoming the first seven legal technicians in the country, a designation that authorizes them to advise clients and file documents in family law court in the state of Washington.

Wright, 60, said she isn’t sure how her career will change — for now, she plans to continue working at the same small law firm in Everett, Washington, where she has been a paralegal.

“If I can make at least twice my past wages above overhead and have some flexibility in my life and help others, I think I’ll call it good,” Wright said. “Talk to me in a year.”

What happens to Wright and the six others is important: Other states are tinkering with similar programs, and likely will be watching closely to see how the legal technician experiment plays out. So far, Washington is the only state to create a new class of legal advisor, the Limited Licensed Legal Technician, or LLLT. The first six, all women, will have more authority than a paralegal and less than a lawyer, when their licenses take effect, expected later this year, after the final administrative details fall into place. In addition to the coursework and the exam, legal technicians also must be qualified paralegals.

State bar leaders are hoping that legal technicians will have less overhead and less debt, and thus be able to charge more affordable rates — Washington has one of the fastest-growing poverty rates in the country, and studies have shown the vast indigent population urgently needs affordable lawyers. Eventually, the state hopes to expand the legal technician program so that LLLTs can also work on elder law, landlord tenant law and immigration law.

Critics of the project, and there are prominent ones, argue that legal technicians simply disguise a much larger problem — that poor citizens need help getting access to fully trained lawyers.

“I’m afraid we’re going to create a second class of justice for the poor,” said Mark A. Johnson, a former state bar president and long-time outspoken opponent of the project.

Johnson also pointed out that LLLTs still face significant education and licensing fees, and will be required to maintain a physical address and malpractice insurance. Given these costs, Johnson said, legal technicians will not be able to service the needs of the low-income households who were the impetus for the program in the first place.

In 2008, while he was serving as President-Elect, Johnson penned a column in the State Bar magazine with Seattle attorney David S. Heller arguing that, rather than empowering technicians, the state should be finding ways to increase the poor’s access to lawyers.

“Relegating people who do not qualify for civil legal aid, but who also cannot afford an attorney, to lesser, limited, non-lawyer representation is neither equal nor just,” Johnson and Heller concluded.

Last February, Johnson delivered a lecture to the LLLT trainees on legal malpractice and professional liability insurance law — one of the graduates said she was surprised to see him participating in the LLLT courses — but in a recent phone call Johnson insisted his contribution shouldn’t be mistaken for support.

Legal technician programs like Washington’s are a step down the road towards deregulation of the legal market, he said.

One of the other graduates, Kim Lancaster, plans to use her LLLT license to open her own practice, housed in the same location as her husband’s firm, where she has been working as a paralegal.

But Lancaster is not sure whom she’ll be servicing. “It may not be possible to offer services to the lowest income residents,” she said. “We may have to target median income people.”

Wright acknowledged Washington can’t expect the program to run on the good will of the service-oriented or the sunset labor of semi-retirees. “If the program is going to attract applicants, LLLTs will need to make a decent salary,” she said.

“The LLLT program isn’t going to solve the entire problem,” said Wright. “I don’t think there’s any one way to solve the entire problem. It’s going to take a lot of effort.”

Opponents like Johnson insist legal technician programs miss the point altogether. The real fix for the nation’s “legal services gap” — between what professionals can afford to charge and what citizens can afford to pay — will require governments, both state and federal, to recommit to funding legal aid programs.

Steve Crossland, chair of the state’s LLLT Board, said Johnson’s criticism fails to account for the multiple ways LLLTs can be used. Technicians may set up their own practices, but they’ll also be working at law firms and legal aid organizations, where overhead costs won’t be such an issue.

Crossland cited Priscilla Selden, another of the seven LLLTs, who is a paralegal at Lacy Kane in East Wenatchee and now plans to open her own practice, in addition to working with a legal aid organization, as a prime example of how the project can succeed.

“I have a goal of mentoring with this,” Selden said. “Really, I should be thinking about retirement at my age. I like to say I’ve paced myself.”

The idea for the legal technician program can be traced back to Washington’s Civil Legal Needs Study, which was published in 2003. It detailed how the state’s low-income residents were navigating divorce proceedings, dealing with negligent landlords, fighting off bill collectors, or lodging discrimination complaints without lawyers.

According to the study, seventy-five percent of low-income households had at least one civil legal problem, more than half had four problems or more. They were dealing with these problems without an attorney 85 percent of the time.

Shortly after the study’s release, the state’s Practice of Law Board — established by the State Supreme Court in part to rein in the unauthorized practice of law — proposed a “legal technician” rule.

The rule governing legal technicians and the Supreme Court’s 2012 opinion authorizing the program both cite the 2003 study but leave room for interpretation about who exactly it is supposed to serve. The rule makes the broad assertion that “the legal needs of the consuming public are not currently being met,” while the Court’s opinion discusses low-income and moderate-income groups interchangeably.

This distinction between the two groups isn’t a fine one. The 2003 study defined low-income households as those making less than 125% of the federal poverty line while moderate-income households are defined as those bringing in between 125% and 400%. In other words, the study that inspired the LLLT program was primarily focused on families making less than $22,625, in 2003 dollars, but the program’s architects contemplated households making as much as $72,400.

This month, a Supreme Court committee put out an update to the study that found the poverty rate in Washington — already the third highest in the nation with the first study came out — is even higher, and the number of civil legal problems per low-income household has tripled from about three problems per household to more than nine problems.

On the question of whom LLLTs will need to hire if they’re going to pay their bills, the Court itself was openly agnostic.

“Opponents argue that it will be economically impossible for limited license legal technicians to deliver services at less cost than attorneys and thus, there is no market advantage to be achieved by creating this form of limited practitioner,” the Court wrote when it signed off on the program. “No one has a crystal ball. … There is simply no way to know the answer to this question without trying it.”

For the LLLT graduates, the experiment is personal. Wright said she put $4,500 on her credit card to pay for books and classes. Her goal is to eventually join her daughter’s law firm. “I’m treating it a little bit like retirement,” she said.

“I’ve been in the legal field since 1998. This is basically a dream come true,” said Michelle Cummings, a paralegal in Auburn. “Not only will I be able to offer a whole new kind of service to the public, I can actually become a partner of a practice or even own my own practice someday.”

“There will be cases that must and should be handled by an attorney. However, for those who just need a little bit of help and only have a little bit of money, this is where an LLLT can make a difference,” she said.

(UPDATED: This story has been corrected to clarify that Kim Lancaster will be opening her own LLLT practice, separate from her husband’s law firm.)