As Wash. Ends Access Program, Advocates Fear Ripple Effect

By Emma Cueto | June 14, 2020, 8:02 PM EDT

Steve Crossland spent more than a decade working to convince Washington state to create a new type of legal practitioner: a nonlawyer that could dispense legal advice. And in 2012, those efforts paid off.

That year, the state created a limited license legal technician certification, which advocates hoped would make legal advice accessible for people who couldn't afford attorneys.

Eight years later, with little notice and no public comment period, the state Supreme Court announced on June 5 that it had voted to "sunset" the program, allowing the LLLTs currently certified to continue using licenses, but not issuing new licenses.

"I was surprised that it happened that quickly," said Crossland, who has been the chair of the LLLT Board since 2012.

The end of the Washington program not only took Crossland by surprise, it also has come at a time when other states are considering similar programs or are in the process of getting newly launched programs off the ground. While some say that the end of the LLLT program won't have an impact, others worry that it might undo progress for an idea that can sometimes be a tough sell.

The goal for the LLLT certification and for similar initiatives is to create a "middle tier" of legal services. Under current rules in most states, nonlawyers can dispense legal information, but only lawyers can provide legal advice. For the millions of Americans who cannot afford to hire attorneys, this means they must rely on either legal services programs or attorneys who provide pro bono assistance.

In practice, many wind up trying to navigate legal processes alone.

Washington's LLLT program was the first of its kind in the U.S., with LLLTs allowed to provide advice in divorces, custody cases and other family law proceedings. With its demise, some are concerned that it might be more difficult to enact similar initiatives in other states.

"I'm hopeful that this isn't going to torpedo the efforts in my jurisdiction," said Stacy Butler, the head of the University of Arizona's Innovation for Justice Program.

Butler is part of an effort in Arizona to create a certification that would be called licensed legal advocates, who would be authorized to provide legal advice to domestic violence survivors. A pilot program for the idea was approved by the courts and launched earlier this year. However, a final decision from the courts is still pending.

Butler said that in her opinion, such programs are desperately needed.

"The gap between what attorneys cost and what Americans can afford is so huge and the needs are so great that we will not be able to close that gap through our traditional service models," she said, arguing the pro bono services and legal aid simply aren't enough.

Although the Arizona LLA certification was not modeled directly on the LLLT program in Washington, Butler said, it was still useful to point to Washington when trying to sell the idea.

"If Washington hadn't been the first, we wouldn't be having the conversations we're having now in Arizona," she said.

Some, however, don't see the demise of the Washington initiative as a major stumbling block for the future of such programs.

"We're very committed to this program," Matthew Page of the Utah State Bar said of the state's licensed paralegal practitioner program, which allows those with the license to provide legal advice on family law, debt collection suits and landlord-tenant disputes. "We're determined to make this work. ... We feel like the potential is huge."

The LPP program, which is in its first year, has so far been going well, Page said. The state already has had four people certified as LPPs, and the demand for their services has been clear, he said.

The Utah program also departed from the Washington program in important ways.

Utah considered the certification requirements for LLLTs to be too onerous, Page said. In Washington, LLLTs needed to take 45 credit hours in legal subjects and pass three different certification exams. Utah's requirements are much less intensive, Page said.

As a result, the state expected there would be more interest and a bigger impact, Page explained. While the state of Washington certified fewer than 50 LLLTs in eight years, Utah hopes to certify 20 in the first two years and 200 in the first 10 years.

In North Carolina, which is still only in the early stages of exploring a possible certification for nonlawyers, the state bar wasn't planning to exactly copy the Washington model, according to Jeff Kelly, an associate at Shanahan Law Group and the chair of the bar's Future of Law Committee, who is involved in considering the idea.

"We viewed it as an applaudable experiment," Kelly said. However, he added, "I don't know that we would implement it in the same way. So I don't know if the sunsetting of the program will have a huge impact."

At a recent meeting, Kelly said, the subcommittee for regulatory reform, which is weighing the idea, talked about the Washington program. Like Utah, members worried that the requirements were too strict. The subcommittee also noted that the LLLTs who were licensed were concentrated in population centers, rather than rural areas, where legal help is often even more rare.

"Right now, I think there's a lot of momentum [for this type of program]," he said. In his view, the end of the LLLT program wouldn't change that.

As North Carolina and other states, including California, decide what, if anything, to take from the Washington experiment with LLLTs, some legal industry observers question whether the idea of certifying nonlawyers is even the best way to address the unmet need for legal help.

William Hornsby, a former staff attorney for the American Bar Association, said that in his opinion, simply having nonattorneys do work once done by attorneys won't be enough to make legal help affordable.

The things that drive up the cost of lawyers, he argued, is that they essentially offer "custom" services. This means that their help is highly labor-intensive.

"It is that labor intensity that makes that work unaffordable," he said.

Instead of putting resources behind new certifications, he argued, states could instead try to invest in technologies that might guide people through standard processes or consider simplifying forms or other aspects of legal proceedings.

Meanwhile in Washington, Crossland said that stakeholders are looking at asking the state's high court to reconsider its decision.

The process for eliminating the license, he believes, was not done properly. He said that he wishes that the court had asked for more input and solicited more information about the work LLLTs are doing, which he considers to be high quality and valuable.

He also disputed the claim that the program was prohibitively expensive, saying that it was a very small part of the bar's overall budget.

However, he added that he was not optimistic about the odds of success in challenging the decision, given that the vote was 7-2.

"Historically, Washington has been a leader in access to justice," he said. "Given the history, it's very surprising [that the court would sunset the program]."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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