Monday, November 16, 2015

Law Wins Again

 What began with this ....

Washington State Experiments with Legal Technicians
June 29, 2015

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
apparrently has ended with this...


Board members quit, blast Washington State Bar in fight over UPL, legal technicians

Posted Nov 09, 2015
By Victor Li
Washington state


Updated: Washington state’s Practice of Law Board has been hit with mass resignations and departures as a result of a long-running feud with the bar association’s leaders.

On Monday, former board members released an 11-page letter (PDF) accusing the executive director of the state bar of pursuing “a campaign to eliminate the Practice of Law Board” over differences in philosophy on how to bridge the access-to-justice gap in the state. According to the letter—signed by four former members of the POLB, including ex-chairman Scott Smith—there have been multiple clashes between the POLB and the bar over the POLB’s role in regulating the unauthorized practice of law.

“The treatment of the practice of law board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers: oppose their mission; cut their budget; withhold meaningful staff support; personally attack and seek to oust the volunteers who disagree with you; conduct secret meetings to discuss the future of the group without informing its volunteer members or inviting them to participate; dismiss or reject out of hand the volunteers’ concerns; and replace the group’s members and leadership team,” the resigning board members wrote. “There is no surer way to demoralize a group of volunteers and undermine their good intentions.”

The Practice of Law Board was set up as an independent entity under the Washington State Supreme Court and was to be administered and partially funded by the state bar. Though it was so structured to ensure that the POLB would not be unduly influenced by the rest of the bar association, the letter says, the POLB had been undermined and even threatened with elimination on multiple occasions. The letter traced the POLB’s problems with the WSBA to the debate over the Limited License Legal Technician Rule, which allows non-JD legal professionals to deliver limited legal services in certain designated practice areas. The rule, proposed by the POLB and opposed by the bar’s Board of Governors, became state law in 2012.

“The Washington State Bar Association has a long record of opposing efforts that threaten to undermine its monopoly on the delivery of legal services,” the four resigning board members wrote. The 13-person POLB is now down to four as a result of resignations and terms that were not extended.

The ABA Journal sought responses from current POLB chairman Paul Bastine, and Washington Supreme Court Chief Justice Barbara Madsen, but did not hear back.

In a statement to the ABA Journal, the Washington State Bar Association said that the letter contained “significant misinterpretations and misunderstandings.” The letter also maintained that the POLB, when reinstated, was instructed to focus on consumer protection and explore new ways for nonlawyers to provide legal and law-related services and to cease its enforcement activities. “Access to justice and the protection of the public are unwavering commitments shared by the Washington Supreme Court and the Washington State Bar Association,” Robin Haynes, president-elect of the Washington State Bar Association, said in the statement. Haynes also said that the Board of Governors has forwarded a list of nominees to the POLB for consideration by the supreme court.

The executive committee of the Washington State Bar has also released a statement, saying: “It is of deep concern that the letter personally attacks individual staff. The integrity, competence and character of WSBA staff are unquestionable, and it is undeserved and unconscionable for individuals to attack and discredit them. All staff actions were consistent with the direction of the Court and the Board of Governors.”

The resigning POLB members also noted that the WSBA Board of Governors voted unanimously to eliminate the POLB in May 2012, a month before the Washington Supreme Court formally adopted the LLLT rule. The supreme court voted to reinstate the POLB in June. The statement from the executive committee disputes this, saying: “The Board of Governors has no authority to eliminate the POLB and has never voted to do so. The POLB is a Supreme Court-created and -appointed board whose appointments and direction come directly from the Court.”

In an interview, former POLB chairman Smith says he is concerned that the board will simply cease to exist now that he and his fellow ex-members have resigned.

“The composition of board is critical,” Smith said. “If you can control who is on the board, then you can control the outcome. [Chief Justice Madsen] rejected our opinions on who should serve on the board, and the court was putting off having a conversation with us about our concerns. As a volunteer board, it’s pretty hard to get a whole lot done if we don’t have support.”

Smith also says he is worried that without a strong, independent POLB in place, the access-to-justice gap will continue to widen. “To be fair to the state bar, they’ve done some great things to promote access to justice,” Smith said. “For instance, they made a significant contribution to legal aid a couple of years ago. Where the conflict comes is when they believe that something will affect the livelihood of their members.”

Smith says that at the time the board went dormant prior to its June reinstatement, he and others were working on a proposed rule that would allow nonlawyers to help register trademarks for clients. “We drafted an advisory opinion, and the IP section of the state bar had a problem with this,” Smith says.

In the end, Smith and his three fellow signatories, Rebecca Baker, Mark Han-Ku Kim and Juan Pablo Paredes, said they will look for other avenues to continue exploring ways to bridge the access-to-justice gap.

“If the board is no longer independent and becomes a rubber stamp for the state bar, then it’ll prevent any meaningful reforms to solving the access-to-justice gap,” Smith said. “They might decide instead to just get rid of the board rather than rebuild it from scratch.”

What we can safely say was an experiment with merit and need is now kaput. The Bar Association protects its own and the surplus of new Lawyers along with the old cannot have their Mercedes serviced. 

Too bad so sad but the Lawyers write the laws, find the loopholes in the laws they write and them promptly rewrite or retract them when they like their $3,000 suits don't fit them.


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