Paralegal or Legal Technician?
The Seattle Timesreports on an owner of a “paralegal firm” charged with unauthorized practice of law. The story describes complaints brought against the owner and the owner’s interesting responses to the charges. Overall, though, the story is quite similar to others describing the ongoing conflict between “independent” paralegals and those seeking to penalize UPL.
Of more interest to me than the details of this particular conflict was the story’s reference to “The state Practice of Law Board …created by the state Supreme Court in 2001 to enforce rules prohibiting individuals and organizations from engaging in unauthorized legal and law-related services, as well as to promote affordable and reliable legal services.” At least the Supreme Court recognized the need to balance access to justice concerns with UPL concerns (whether those concerns rests in protecting the public or the bar. ) However, it set me to wondering what the Board had done on the second aspect of its duties: promoting affordable and reliable legal services.
Looking at the Board’s website, it does appear that the Board’s focus is on the UPL aspect of its duties rather than the access to justice aspect. It’s home page recites that the Board is required to:
* promote expanded access to affordable and reliable legal and law-related services;
* expand public confidence in the administration of justice;
* make recommendations regarding the circumstances under which nonlawyers may be involved in the delivery of certain types of legal and law-related services;
* enforce rules prohibiting individuals and organizations from engaging in unauthorized legal and law-related services that post a threat to the general public;
* ensure that those engaged in the delivery of legal services in the state of Washington have the requisite skill and competencies necessary to serve the public.
The Board has found over 40 instances of UPL in its history. While it has apparently taken only one step on the access to justice side, that step appears to be a major one:
The Board also works on developing a pilot project of its proposed Legal Technician Rule. This rule allows trained, tested and licensed non-lawyers to provide specifically defined legal services without supervision by a lawyer.
The website provides additional information regarding the Legal Technician Rule:
[T]he Board has developed a proposed APR creating Legal Technicians. Legal Technicians are envisioned to be educated, tested and certified nonlawyers authorized to provide limited legal services in specific areas. The proposed APR creates a commission to assist in regulating the legal technicians. Here are the proposed regulations rules for that commission. The Board wrote an article explaining the vision for legal technicians. The POL Board asked for input from invited guests during its April, May, and July 2006 meetings. During the October 2006 retreat, the Board set up four sub-committees. These sub-committees will investigate the feasibility of a legal technician pilot project in four areas of substantive law. The four sub-committees are: family law, immigration law, elder law and housing law.
Here’s the general statement of what the Elder Law Subcommittee has decided:
The Elder Law Sub Committee of the Practice of Law Board recommends that legal
technicians be authorized to perform certain basic legal tasks in the following areas, when a
matter is uncontested: guardianship law, basic estate planning, probate law, and vulnerable
adult proceedings. These areas were identified by the Sub Committee because the legal
community has already developed model forms to perform many of the basic legal tasks in
these areas. More complex or contested elder law issues do not lend themselves well to a
form based practice and, therefore, should be handled by licensed attorneys.
Those model forms are used currently by pro se litigants with little or no instruction from
attorneys; sometimes with success and sometimes with unexpected results. The frequency of
unexpected outcomes can be reduced with improved access to legal professionals with elder
However, in 2008 the Board proposed a rule that applied only to Family Law. Later in 2008 the State Bar Association Access to Justice Committee asked the Supreme Court to form a task force to implement the rule noting:
The proposed Rule, with its advice and advocacy enhancements, is intended to increase access to justice. With the availability of more advocates, more people will have access to legal assistance for their family law matters. The Rule is intended to open up the availability of limited legal services to those who fall into the populations noted above. The Rule is very technical and is probably not well understood within the legal community. It is not perfect, but seldom is any law or rule. If, after implementation, it is determined that the Rule isn’t working, it can be modified or repealed. For now, the Rule is a step in the right direction and merits the support of the ATJ Board.
We understand many interested parties oppose the Rule. However, this important issue has been ignored for far too long and the ATJ Board must exercise creative leadership on this matter consistent with the ATJ Board’s mission.
There is no information on the site as to what has happened since with regard to this Rule or the pilot project. If any of you know the present status of this adventure, I’d be pleased to hear from you.