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Limited licensing programs gain traction in the legal community

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The idea of non-lawyers practicing law sparks howls of protest from attorneys but with a handful of state seriously considering the proposition and a national committee recommending the concept, the push toward limited licenses is gaining momentum.

A primary concern is that individuals with special licensing will take work away from established attorneys and make it more difficult for new lawyers to gain a foothold. This worry, however, is getting overshadowed by the growing problem of more and more people going without legal representative because they cannot afford an attorney.

Littlewood Littlewood

The state of Washington is the first to develop a program to train and license individuals in very narrow areas of the law. California and New York are reviewing limited licenses.

The American Bar Association Task Force on the Future of Legal Education described the increasing attention to limited licensing as a positive development.

Led by retired Indiana Chief Justice Randall T. Shepard, the ABA committee is advocating the legal community look for alternatives to the three-year degree program that yields “professional generalists.” The task force recommends law schools develop programs for specialized licenses and that state regulators formulate licensing systems without limiting access or raising the price of legal services.

The experience in Washington shows that the road to limited licenses can be very long. After 10 years of talking – and fighting – about alternative legal practitioners, the Washington Supreme Court adopted the rule in June 2012.

What was considerably easier was convincing the state’s law schools to participate, according to Washington State Bar Association Executive Director Paula Littlewood and Limited License Legal Technician Board Chair Steve Crossland. The three schools in Washington readily collaborated to develop a curriculum of 15 credit hours which couples with a basic core curriculum taught in the community college system.

At the law schools, the limited license curriculum – which will begin in the fall of 2014 – is designed to be a mix of theory and hands-on training. Also, all law professors will be paired with a practicing attorney. Littlewood recalled one professor who quipped that students coming through the specialized license program ould be better trained than the law students.

Crossland Crossland

Once students complete the program, they will be limited license legal technicians. They will be able to file forms and give advice without an attorney’s supervision, but they will not be allowed to represent clients in court or negotiate on behalf of clients. Also the LLLTs will be required to carry malpractice insurance.

Representatives of three law schools in Indiana had differing reactions to limited licensing.

Gary Roberts, dean emeritus at Indiana University Robert H. McKinney School of Law, said members of the bar would likely “go crazy” at the suggestion of a limited legal license. But he believes alternative licenses will eventually be granted in Indiana.

“It’s coming,” he said. “I think it’s inevitable.”

Notre Dame Law School Associate Dean Mark McKenna thinks law schools would take a hard look at tailoring their curriculums to create a course of study for limited legal practitioners if the state approved such licenses. The South Bend school would probably talk about offering such a program, giving consideration to how a limited license track would fit with the school’s mission and current J.D. program, he said.

Speaking after Shepard made a presentation about legal education at Notre Dame in late September, McKenna was receptive to the idea of limited licenses. He personally considers limited licensing to be a good solution if the practitioners can do their jobs well and they fill a need in the market.

“There are tons of services that are not being adequately provided by lawyers, and I would like to see more lawyers doing those things but at the very least, I would like to see those services being rendered,” McKenna said, pointing to the number of people who go through divorces or do small-business transactions without legal advice because they cannot afford it. “I think that’s something the legal profession has to take more seriously.”

Roberts pointed to the growing need for affordable legal services. Currently, small-business owners as well as lower- and middle-income people are going without legal assistance because the price is too high. When that demand for less expensive services becomes a “ground swell,” he said, a limited license program will be introduced.

The argument that a limited licensed practitioner would not be as good as someone with a full, three-year law school degree was dismissed by Roberts as nonsense. To do a simple divorce or draw up a lease contract, an individual does not need to have taken the full range of courses offered in law schools.

roberts-gary-mug.jpg Roberts

Moreover the lawyers who, on the one hand, say the third year of law school is unnecessary but, on the other hand, contend only someone with a J.D. can perform legal services are talking from both sides of their mouths, Roberts said.

At Indiana Tech Law School, Dean Peter Alexander disputed the contention that practitioners with narrow training can produce legal services that matches the quality of the work done by law school graduates. The ability to analyze and synthesize as necessary to fully serve clients comes only from studying for three years at a law school, he said.

“I think legal education helps to transform people from whatever they are before law school into lawyers,” Alexander said. “Without that transformation, I don’t think you can offer the same level of services to clients.”

The problem of access to justice can be addressed by requiring attorneys to do pro bono work, Alexander said. Holding a law license is a privilege, he continued, so lawyers would have a responsibility to offer a certain numbers of hours each year to handling charity cases.

In October 2013, the Indiana State Bar Association Professional Legal Education, Admission and Development Section issued a report that included a review of special licensing. The section recommended against moving forward with legal technicians at this time but left the door open for future consideration by advising the state bar to monitor the success of such programs in other jurisdictions.

The Washington State Bar Association is overseeing the LLLT program. It established the curriculum, set the rules of professional conduct and created the two bar exams the students will have to take (one at the end of their community college rotation and other after they complete the law school courses).

Also, the state bar association provided seed money of $130,000 to get the program started. Littlewood and Crossland said once students start paying the fees for licensing, the program will become self-sufficient.

In Washington, the motivation for limited licenses came about because many state residents are either going without legal assistance or they are getting harmed by individuals who misrepresent their legal abilities.

Whenever lawyers complained in the past that LLLTs would take clients away, Littlewood reminded them of the number of people going without representation. If attorneys were doing the work, she said, there would not be a problem with access to justice.

Now if a lawyer complains, Littlewood has a short answer that highlights the reality.

“It’s here,” she replies. “The debate is over. The (Supreme) Court has spoken.”•

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  • A good reason for Paralegal Licensing
    One thing this article doesn't mention is that many highly qualified paralegals have the training and experience to perform exactly the types of tasks being considered for LLLTs. The curriculum at the State's accredited paralegal programs could just as easily be tailored to allow paralegals to receive the education, and licensing needed to directly assist with, and perform those specialized tasks - like simple divorces, leases, small claims filings, etc... Paralegals have always been a great solution to the need for low-cost legal services for the under-served in our state - but as with many things in the Hoosier state, we are behind the times.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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