Legal Technicians Step In To Fight Justice Gap

By Adam Rhodes | November 18, 2018, 8:02 PM EST

Marya Noyes is one of several "legal technicians" in Washington state licensed under a program to help those who can't afford an attorney in certain family law matters. (Photo: Phil Donley)

Marya Noyes left her job at Zillow in 2014 looking to make a difference. Law school was too expensive, but she eventually discovered a program in her home state of Washington that would allow her to practice law in a limited capacity — and help people who couldn't afford an attorney.

"I'd sort of always been, to a certain extent, in sales and I really wanted to feel like I was contributing to society as opposed to selling one more thing that nobody needed to people who didn't want it," Noyes, a banking industry veteran, told Law360.

The program Noyes stumbled across created a class of "limited license legal technicians" to help lower-income people in family law disputes, including divorce and child custody matters. Without any legal experience, Noyes jumped into the program in January 2015 and completed thousands of hours as an attorney-supervised paralegal before she was licensed as a technician in June 2017. A month later, she joined O'Brian & Associates, in Redmond, Washington.

"Before the development of the LLLT position, the field was incredibly stacked against the low- to middle-income litigant in the area of family law," said Noyes, who recently joined Genesis Law Firm PLLC in Everett, Washington. "I get a chance every day to assist those individuals in our court system who were previously voiceless."

Washington is one of four states with programs aimed at equipping nonlawyers with the tools needed to help shrink the civil justice gap either as dispensers of legal advice or guides for pro se litigants. Utah in early November launched a program that goes beyond family law to landlord-tenant disputes and debt-collection disputes with less than $11,000 in controversy.

Such programs are part of a broader movement attempting to reckon with "a spectrum of legal needs" that may not require an attorney, said David S. Udell, the executive director of the National Center for Access to Justice.

"We should be able, as a profession and a field, to offer a range of services that are responsive to those different needs," he said.

Different States, Different Approaches

The family of programs in places like Washington and Utah are part of a broader push for civil legal aid options that dates to the 1990s, when access to justice commissions began forming across the U.S., said Mary E. McClymont, a senior fellow at the Justice Lab at Georgetown University Law Center.

"There started to emerge, in the '90s, new mechanisms and new ideas, and among them were access to justice commissions in all the states, many new players seeing how to expand services for self-represented litigants, and it's now at a very significant level," McClymont said.

The Washington Supreme Court adopted rules governing the technician program in 2012, and the state held its first exam for the license in 2015. Since then, 39 LLLT licenses have been issued, though Noyes said only 34 of those people are actively working as technicians.

For those without the money to hire a lawyer, legal technicians could offer an affordable alternative. LLLTs charge about one-third of what attorneys charge, according to Paula Littlewood, executive director of the Washington State Bar Association, citing anecdotal information.

"Most people who are relatively financial secure don't really get that there is a substantive difference between a $1,000 retainer and a $5,500 retainer," Noyes said. "Unfortunately, most low- to moderate-income earners could no more put their hands on $5,500 than they could on $550,000."

Though Washington's program was the first of its kind, programs aimed at providing civil legal assistance have been cropping up in other states and cities, though no two programs are alike.

In Colorado, coordinators for self-represented litigants, or "Sherlocks," help individuals navigate the courts. Sherlocks can refer litigants to pro bono services, inform them about court rules, explain their options and review documents before hearings to make sure they meet procedural requirements.

In New York City housing court, volunteer court navigators offer individual help to litigants without an attorney and can even accompany them in Bronx, New York, Kings, and Queens County Housing Court and Bronx Civil Court courtrooms.

Utah's program of so-called licensed paralegal practitioners is possibly the most similar to Washington's license, though unlike the LLLT, the practitioners will be able to work on smaller landlord-tenant disputes and debt collection cases. Rules governing the LPP program were adopted in early September and took effect Nov. 1.

While the Utah practitioners will be able to meet and interview their clients, help them fill out forms and strategize on their cases, they won't be able to appear in court, according to LPP Steering Committee member and Utah appellate court administrator Catherine Dupont. LPPs can, however, mediate on behalf of their clients, she said.

Oregon has also considered a LLLT program, and in June 2017 a working group recommended the Oregon State Bar's board of governors appoint a committee tasked with developing a plan to license so-called paraprofessionals. A representative for the Oregon bar did not return a request for comment on the status of that committee.

Technicians vs. Lawyers

Opening up legal work that has been the exclusive jurisdiction of full-fledged attorneys hasn't sat well with some in the profession.

Some of the comments that the bar in Utah received during the feedback process after it proposed the LLP program express concern that it may cause more problems than it solves.

"I am very concerned with the ethical implications and also the problems that may be 'left' with a practicing attorney if the case is not settled by the end of mediation," one anonymous commenter said.

Another anonymous commenter said that LPPs "may limit the client's ability to have his/her case furthered in an appropriate manner, leading to more time and costs."

In Washington, such resistance still crops up every time the board governing the license considers expanding it past family law, according to Littlewood. The board is currently looking to expand into immigration and bankruptcy as well as consumer money and debt law, LLLT Board Chair Stephen Crossland said.

"Change is hard, particularly where you're working with a lawyer audience where lawyers are trained to be risk-averse and precedent-bound," Littlewood said.

That pushback is eroding, Littlewood added, especially after attorneys realize that LLLTs among their ranks are potential business connections.

Benefits Still Unproven

While Washington has grown accustomed to its program, other jurisdictions have taken a pass.

In October 2017, a working group in Montana unanimously decided that a similar program would not work in the state. The working group, made up of scholars, legal aid advocates and state bar association members, said it observed that Washington LLLTs focus their work mostly on urban areas and as part of law firms instead of needy, rural areas.

That focus, the group said, would still leave many self-represented litigants without crucial legal help.

The group also pointed to the complexity of the license implementation and hourly rates that could deter low- and moderate-income individuals from taking advantage of the program in Montana.

"It is not clear whether one with an LLLT degree could substantially relieve either the challenges self-represented litigants themselves face or the challenges faced by courts when dealing with self-represented litigants," the report said.

Indeed, the ultimate effectiveness of such programs remains a question for those fighting to close the justice gap.

Karen Lash, practitioner-in-residence and director of the Justice in Government Project at American University, expressed concern about more programs launching before they can be studied closely.

"It would be good to have more studies that demonstrate that when people get this kind of legal help from nonlawyers that their outcomes are better," said Lash, a former official with the U.S. Department of Justice's Office for Access to Justice.

Lash did note, however, that the programs "have a critical role to play in addressing the civil access to justice crisis."

Udell, who agrees that more research into nonlawyer outcomes is needed, welcomed such programs as a civil legal aid frontier worth exploring.

"Everyone recognizes that the legal system presumes that there will be lawyers on both sides, and the access to justice movement is focused on ensuring that the legal system can effectively protect people's rights by moving to a new paradigm," Udell said.

--Editing by Brian Baresch.

Clarification: This story has been updated to clarify the views of David Udell, executive director of the National Center for Access to Justice, and Karen Lash, practitioner-in-residence and director of the Justice in Government Project at American University.

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