On January 7, the Practice of Law Board submitted a proposed Legal Technician Rule, which would allow non-lawyers to engage in the practice of family law, directly to Chief Justice Alexander and the Washington Supreme Court for approval.
However, the rule has not been well-received in other circles. In addition to being rejected by the Washington State Bar Association’s Board of Governors, the rule was condemned by WSTLA, the WSBA Young Lawyers Division, the WSBA Family Law Section trustees, the Pierce County Bar Association and other major groups.
Although the rule’s pilot program would begin with family law, the Practice of Law Board has indicated it would like to see technicians providing services in a variety of other legal areas, including immigration and bankruptcy. The rule may have a major impact on our practice and it is imperative for lawyers to understand its ramifications.
By bypassing the WSBA, we are left with no choice but to voice our concerns directly to the Supreme Court. The fundamental question that faces all of us is whether a non-lawyer can adequately represent our clients’ interests.
Background of the Rule
There is no question that there is an enormous unmet need for civil legal aid in Washington. Every day, pro se litigants present their family law cases in Superior Court without the assistance of a lawyer. They may attend legal clinics, speak with a courthouse facilitator or seek help online, but this is not a total substitute for the services of a well-trained lawyer. The stakes are high in family law cases; a person stands to lose their children, home and personal property, and while indigent litigants would benefit enormously from a lawyer, most simply do not have the resources to afford one.
In re the Marriage of King, decided by the Washington Supreme Court on December 6, held that there is no fundamental right to legal counsel granted by the Washington Constitution. Moving on from this defeat, advocates for indigent litigants now are looking for alternative methods for these people to obtain the advice they need to fully and fairly present their cases in court.
In 2001, the Supreme Court created the Practice of Law Board upon adoption of General Rules (GR) 24 and 25, allowing it to “recommend that non-lawyers be authorized to engage in certain defined activities that otherwise constitute the practice of law as defined in GR 24.” Regulation 8(D) states that any recommendation from the Board be submitted to the WSBA Board of Governors for consideration and comment before transmission to the Supreme Court.
In response to its mandate, the Practice of Law Board created the concept of “legal technicians” through a proposed Admission to Practice Rule. These technicians would be permitted to practice law after two to three years of experience, despite never attending law school or receiving the legal training necessary to provide legal advice to low-income litigants.
These legal technicians would not even need a bachelor’s degree; an associate’s degree would suffice, as long as the technician took some substantive legal courses. The technician would need to pass an examination, have good moral character and be at least 18 years of age. The Rules of Professional Conduct would apply to technicians, including requirements for the creation and management of trust and IOLTA accounts.
Implications of Untrained Legal Technicians Practicing Law
A legal technician would be permitted to perform work independently for a client. She would be expected to advise the client about what documents would be necessary and explain how those documents could affect the client’s case. Some tasks authorized by the proposed rule require that the technician be supervised by an attorney; however, the rule does not define the level of supervision necessary for the technician to perform these tasks. If supervised, the legal technician could perform legal research and draft pleadings and letters, but would not be permitted to appear in court or negotiate with the opposing side on behalf of a client.
Many of these tasks already are performed by paralegals and legal assistants. Clients are protected by their relationships with their attorneys and the attorneys’ ultimate responsibility to review and approve any documents drafted by an assistant or paralegal before being submitted to the court or the opposing side. Without the review of a trained attorney, clients are seriously risking harm to their cases when going before a family law judge or commissioner. If a client decides that he or she cannot afford an attorney to provide full-service representation, many attorneys provide so-called “unbundled” legal services to fit almost any client’s budget.
The main purpose of the rule is to lower the cost of legal services in Washington. However, legal technicians would have the same types of overhead costs as an attorney (office space, telephones, computers, staff, access to legal research materials), and the rule does not cap their fees in any way. The legal technicians also would directly compete with attorneys and, as nothing within the rule limits a legal technician to indigent clients, attorneys and legal technicians would have significant overlap in their client bases.
Also, while there is no evidence that the rule would provide indigent clients with legal services that are any cheaper than those provided by an attorney, it is clear that the quality of services provided by a technician would not be comparable to those offered by an experienced attorney.
Alternatives to the Rule
The Legal Technician Rule is not the answer for low-income litigants. There are other methods to serve these individuals that will provide them with advice from well-trained and experienced attorneys. Lawyers have an obligation to serve those less fortunate through pro bono services, and the KCBA sponsors many family law clinics that provide services throughout King County.
The WSBA Young Lawyers Division offers the Greater Access and Assistance Project (GAAP), which provides low-income individuals with legal services capped at $75 an hour. Not only does this give young lawyers important experience, but it also provides low-income individuals with the chance to consult with a properly trained individual who is able to provide them with the best advice possible. Additionally, public interest groups such as the Northwest Justice Project, Columbia Legal Services and CLEAR provide critical legal services in family law cases to low-income individuals and are another significant resource that can be utilized.
The Practice of Law Board previously sought approval for its proposed rule from the WSBA’s Board of Governors on March 3, 2006, and was soundly rejected. This time, it has circumvented the WSBA, despite Regulation 8(D) in GR 25, and gone directly to the Supreme Court for approval.
As the Supreme Court reviews this rule, all lawyers should send their comments directly to the Court through Chief Justice Alexander as soon as possible. While all attorneys are sympathetic to the underlying reasoning for the rule, this is simply not the answer to the problem.
Comments can be sent to Chief Justice Alexander at the following address: Chief Justice Gerry Alexander, Washington Supreme Court, Temple of Justice, P.O. Box 40929, Olympia, WA 98504.
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