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.
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.
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.
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.”•