Oklahoma Bar Journal
The L in Triple LTs: The Limited Nature of Licenses for Legal Technicians
By Michael Speck
LLLTs, what are they? Where are they? How many of them are there? An LLLT is a limited licensed legal technician; they are not an attorney, but are licensed to practice law in a limited capacity. Washington was the first state to adopt the LLLT model and remains the only state to grant any limited licenses to legal technicians. In early 2015, Washington granted licenses to seven LLLTs (grandfathered in, having at least 10 years of practice). In the fall of 2015, 15 more applicants sat for the LLLT exam in Washington with 10 applicants passing the exam.1 There are likely no more than 22 LLLTs (or the equivalent) in the country, all of them in the state of Washington.2
Why did Washington mess with what wasn’t working and create LLLTs?3 In 2001, the Washington State Supreme Court created a Task Force on Civil Equal Justice Funding to assess the civil legal needs of low-income individuals and to recommend ways the state might help to meet those needs. The task force conducted The Civil Legal Needs Study (study),4 which examined the best practices identified in both a national study published by the American Bar Association in 19995 and Oregon’s 2000 “Assessment of Legal Needs.”6 The task force commissioned a field survey of in-depth interviews and a telephone survey of randomly chosen households. The study results indicated that civil legal needs in low-income populations were not being adequately met. One of the major reasons given by the study participants for not seeking legal assistance was the lack of affordable legal services. The study reports that this lack of affordable services led to the creation of a secondary market of unregulated, untrained and unsupervised legal practitioners.
In its June 2012 order, the court explained its rationale for adopting APR 28:
The practice of law is a professional calling that requires competence, experience, ac-countability and oversight. [Limited] License Legal Technicians are not lawyers. They are prohibited from engaging in most activities that lawyers have been trained to provide. They are, under the rule adopted today, authorized to engage in very discrete, limited scope and limited function activities. Many individuals will need far more help than the limited scope of law related activities that a limited license legal technician will be able to offer. These people must still seek help from an attorney. But there are people who need only limited levels of assistance that can be provided by non-lawyers trained and within the framework of the regulatory system developed by the Practice of Law Board. This assistance should be available and affordable. Our system of justice requires it.7
Who is qualified to become a Washington LLLT? To become a limited license legal technician, candidates must:
- Obtain an associate’s degree or higher;
- Complete 45 credit hours of core curriculum through an American Bar Association-approved legal program;
- Complete applicable practice area courses (e.g. family law) offered through the University of Washington School of Law;
- Complete 3,000 hours of paralegal experience involving substantive legal work in any practice area under the supervision of a lawyer; and
- Take and pass the Legal Technician Exam.8
These qualifications are considerable, even described as “onerous” by Tulsa Business and Legal News correspondent Ralph Schaefer.9
What rules must LLLTs follow? On Jan. 8, 2015, the Washington State Supreme Court adopted the Limited License Legal Technician Rules of Professional Conduct (LLLT RPC), which became effective Feb. 3, 2015. Many of the LLLT RPC were adopted from the RPC regulating attorneys, either applying analogously or as modified to reflect the limits on LLLT’s practice. The preamble to the LLLT RPC begins with:
An LLLT is authorized to provide limited legal services that lie within the scope of the practice that the LLLT is licensed to undertake. Within that scope, an LLLT is a member of the legal profession, is a representative of clients, and has a special responsibility for the quality of justice.
Comments to the preamble include:
The Rules of Professional Conduct for LLLTs are modeled on Washington’s Rules of Professional Conduct for lawyers (lawyer RPC). The structure of these Rules, like the Lawyer RPC, generally parallels the structure of the American Bar Association’s Model Rules of Professional Conduct.
Examples of modified RPC include:
- LLLT RPC 1.13, which is inapplicable to LLLTs as the authorized scope of an LLLT practice does not currently “contemplate representation of an organization.”
- Lawyer RPC 1.15A(a) contemplates that lawyers may act as escrow agents for the closing of a purchase and sale of real estate or personal property, a practice area that is not contemplated by APR 28. Accordingly, there is no counterpart in this LLLT RPC to lawyer RPC 1.15A(a)(2).
- Lawyer RPC 2.3 pertains to a lawyer providing an evaluation of a matter affecting a client for the use of someone other than the client. Unlike lawyers, LLLTs are not authorized to communicate the client’s position to third parties. Drafting an opinion letter for the purposes of its use with a third party is the same as communicating the client’s position to a third party and is prohibited by APR 28(H)(6).10
Every LLLT is required to show proof of ability to respond in damages resulting from his or her acts or omissions in the performance of services permitted under APR 28 by submitting 1) an individual professional liability insurance policy in the amount of at least $100,000 per claim and a $300,000 annual aggregate limit; 2) a professional liability insurance policy of the employer or the parent company of the employer who has agreed to provide coverage for the LLLT’s ability to respond in damages in the amount of at least $100,000 per claim and a $300,000 annual aggregate limit; or 3) proof of indemnification by the LLLT’s government employer.11
A Washington LLLT is subject to the same rules of professional conduct as an attorney, with the exception of those modified to reflect the limited nature of the license. LLLTs are required to contract with their clients and specifically state the limits of the work that can be done. LLLTs are also required to submit proof of financial responsibility. Subject to these strict qualifications and rules, what may an LLLT do for a client? Under current Washington State Supreme Court authorization, legal technicians may advise clients in only one area of practice — family law. LLLTs can, in working with clients on family law matters:
- Obtain relevant facts and explain the relevancy of such information to the client;
- Inform the client of applicable procedures, including deadlines, documents which must be filed and the anticipated course of the legal proceeding;
- Inform the client of applicable procedures for proper service of process and filing of legal documents;
- Provide the client with self-help materials prepared by a Washington lawyer or approved by the board that contain information about relevant legal requirements, case law basis for the client’s claim and venue and jurisdiction requirements;
- Review documents or exhibits that the client has received from the opposing party and explain them to the client;
- Select, complete, file and effect service of forms that have been approved by the state of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute, federal forms, forms prepared by a Washington lawyer or forms approved by the board and advise the client of the significance of the selected forms to the client’s case;
- Perform legal research;
- Draft legal letters and documents beyond what is permitted in paragraph six (see two bullet points above), if the work is reviewed and approved by a Washington lawyer;
- Advise a client as to other documents that may be necessary to the client’s case and explain how such additional documents or pleadings may affect the client’s case; and
- Assist the client in obtaining necessary documents or records, such as birth, death or marriage certificates.12
The short list of work that an LLLT can perform for a client must arise under specified conditions. First, an LLLT must have a principal place of business, with a physical address for the acceptance of service of process, within the state of Washington. The services authorized shall not be delegated to a nonlicensed person. A contract must be the first step to an LLLT-client relationship. The contract must specifically explain the services to be performed, the fact that the LLLT is not a lawyer and may only provide limited services, a clear statement about the LLLT’s responsibility to protect the client’s confidentiality and a statement allowing the client to terminate the working relationship at any time, entitling the client to a full refund of all unearned fees shall not initiate or respond to an appeal to an appellate court.13
LLLTs have an affirmative duty to inform clients when issues arise that are beyond the limited scope of the LLLT’s practice and to inform the client in writing that:
- The issue may exist, describing in general terms the nature of the issue;
- The LLLT is not authorized to advise or assist on this issue;
- The failure to obtain a lawyer’s advice could be adverse to the client’s interests; and
- The client should consult with a lawyer to obtain appropriate advice and documents necessary to protect the client’s interests.14
In addition to these limitations on a LLLT’s practice, there are several applicable prohibitions. LLLTs may not:
- Make any statement that the limited licensed legal technician can or will obtain special favors from, or has special influence, with any court or governmental agency;
- Retain any fees or costs for services not performed;
- Refuse to return documents supplied by, prepared by or paid for by the client upon the request of the client. These documents must be returned upon request even if there is a fee dispute between the limited licensed legal technician and the client;
- Represent or advertise, in connection with the provision of services, other legal titles or credentials that could cause a client to believe the limited licensed legal technician possesses professional legal skills beyond those authorized by the license held by the limited licensed legal technician;
- Represent a client in court proceedings, formal administrative adjudicative proceedings or other formal dispute resolution processes unless permitted by GR 24;
- Negotiate the client’s legal rights or responsibilities, communicate with another person the client’s position or convey to the client the position of another party unless permitted by GR 24(b);
- Provide services to a client in connection with a legal matter in another state unless permitted by the laws of that state to perform such services for the client; and
- Represent or otherwise provide legal or law-related services to a client, except as permitted by law, this rule or associated rules and regulations.15
These general parameters of an LLLT’s practice are restricted further still as the only practice area authorized by the LLLT RPC is a very limited practice in family law or domestic relations.16 Of course LLLTs cannot represent more than one party in any domestic relations matter, but LLLTs are also prohibited from providing legal services in de facto parentage or nonparental custody actions, and where 25 U.S.C. Chapter 21, the Indian Child Welfare Act or RCW 13.38, the Washington State Indian Child Welfare Act, applies to the matter. Also, LLLTs cannot advise or assist clients regarding:
- Division of owned real estate, formal business entities or retirement assets that require a supplemental order to di-vide and award, which in-cludes division of all defined benefit plans and defined contribution plans;
- Bankruptcy, including obtaining a stay from bankruptcy;
- Disposition of debt and assets if one party is in bankruptcy or files a bankruptcy during the pendency of the proceeding unless a) the LLLT’s client has retained a lawyer to represent them in the bankruptcy, b) the client has consulted with a lawyer and the lawyer has provided written instructions for the LLLT as to whether and how to proceed regarding the division of debts and assets in the domestic relations proceeding or c) the bankruptcy has been discharged;
- Anti-harassment orders, criminal no contact orders, anti-stalking orders and sexual assault protection orders in domestic violence actions;
- Jointly acquired committed intimate relationship property issues in committed intimate domestic relationship actions;
- Major parenting plan modifications unless the terms were agreed to by the parties before the onset of the representation by the LLLT;
- The determination of Uniform Child Custody Jurisdiction and Enforcement Act issues under RCW 26.27 or Uniform Interstate Family Support Act issues under RCW 26.21(A) unless and until jurisdiction has been resolved;
- Objections to relocation petitions, responses to objections to relocation petitions or temporary orders in relocation actions; and
- Final revised parenting plans in relocation actions except in the event of default or where the terms have been agreed to by the parties.17
LLLTs are also expressly prohibited from appearing or participating in the taking of a deposition or initiating or responding to an appeal to an appellate court.18
Now that nonattorneys may, in a very limited way and subject to strict regulation, provide legal services in Washington, the market there will change to reflect new relationships among service providers and their clients. In April of this year, the WA RPC were amended to clarify the limits upon business relationships between an attorney and an LLLT. Under Washington’s Rule 5.9,19 a lawyer may:
- Share fees with an LLLT who is in the same firm as the lawyer;
- Form a partnership with an LLLT where the activities of the partnership consist of the practice of law; or
- Practice with, or in the form of, a professional corporation, association or other business structure authorized to practice law for a profit in which an LLLT owns an interest or serves as a corporate director or officer or occupies a position of similar responsibility.
A lawyer and an LLLT may practice in a jointly owned firm or other business structure authorized by paragraph (a) of Rule 5.9 only if:
- LLLTs do not direct or regulate any lawyer’s professional judgment in rendering legal services;
- LLLTs have no direct supervisory authority over any lawyer;
- LLLTs do not possess a majority ownership interest or exercise controlling managerial authority in the firm; and
- Lawyers with managerial authority in the firm expressly undertake responsibility for the conduct of LLLT partners or owners to the same extent they are responsible for the conduct of lawyers in the firm under Rule 5.1.20
Is the Washington LLLT experiment a glimpse of things to come? The winds of change are stirring. Perhaps allowing nonlawyers to provide limited legal services will help the profession, as well as the public we serve.21 This is an intermediate step to, or one of many changes in lieu of, deregulation of the profession.22 In the spring of this year, the ABA published an ostensible position paper discussing the pros and cons of the alternative business structures for law firms, including empirical data from jurisdictions who have adopted the ABA Model Rules of Professional Conduct. No conclusion was reached, and input from the membership has been sought; however, the ABA acknowledged the Washington LLLT rules created an ABS for Washington law firms:
Washington State also permits a form of nonlawyer ownership. The Washington Supreme Court recently created the Limited License Legal Technician (LLLT), the first independent paraprofessional in the United States that is licensed to give legal advice. On March 23, 2015, the Washington Supreme Court issued a new rule permitting LLLTs to own a minority interest in law firms. As a result, Washington State falls into the first category of ABS described above, except that ownership by nonlawyers is limited to LLLTs.23
This position paper is consistent with ABA Resolution 105, which creates “model regulatory objectives” for the provision of nontraditional legal services and states in relevant part:
FURTHER RESOLVED, That the American Bar Association urges that each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
FURTHER RESOLVED, That nothing contained in this Resolution abrogates in any manner existing ABA policy prohibiting non lawyer ownership of law firms or the core values adopted 30 by the House of Delegates.24
Would Oklahoma ever consider the LLLT model?25 I submit that we should at least study the possibility. There is much work to be done in improving the access to justice for Oklahomans. Oklahoma ranked 50th in the composite index set forth in the 2014 Justice Index compiled by National Center for Access to Justice (NCAJ).26 The NCAJ is a project of the Cardozo School of Law. The NCAJ index is “a snapshot of the degree to which certain selected best practices for ensuring access to the civil and criminal justice systems have been adopted across the country.”27It also “shows the number of these attorneys for every 10,000 people in poverty in each state” as well as “the number of all attorneys per 10,000 people (not in poverty) in each state.”28
According to the NCAJ index, Oklahoma has 0.73 attorneys for every 10,000 people living in poverty and 35.28 attorneys per 10,000 people. As to the number of attorneys for every 10,000 people living in poverty, more than 30 states are better situated than Oklahoma.29 The NCAJ reports more than 80 percent of the litigants in the courts of the various states appear pro se “in matters as important as evictions, mortgage foreclosures, child custody and child support proceedings, and debt collection cases.”30 This appears to indicate that a paucity of legal representation for poor persons is a national problem, and that we in Oklahoma have yet to rise to the average, and yet inadequate, response to the need.
It is evident there are unmet legal needs for economically disadvantaged Oklahomans.31 Where a market need requires specialized training, those who fill in the gaps “often can harm vulnerable consumer populations.” In the afore-quoted article, titled “The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice,” Brooks Holland an associate professor of law at Gonzaga University School of Law, cites a letter from Washington Practice of Law Board to Washington State Supreme Court, at page 2 (Oct. 27, 2010) (on file with said author), which she describes as “explaining that a ‘thriving market for non-attorney legal services . . . operates in Washington — with little to no oversight.’”
When a legal crisis arises, [persons in need] either must try to handle it themselves, without any understanding of the legal framework involved, or turn to unregulated “paralegals” or others offering their services. Increasingly, people of limited means are being victimized by unscrupulous individuals providing ineffective and sometimes unethical services to the desperate. These individuals claim to have the expertise to provide legal assistance, at a price. Although this situation has proliferated in several areas of practice, it seems most rampant with regard to family law and . . . with unlicensed “notario” services.32
Analogs exist in Oklahoma as evidenced by such websites as:
- paylessdivorceok.com; and
These websites indicate that the services advertised are not legal services, and that documents provided and/or completed are for use by pro se litigants. I make no representation regarding the scruples of these service providers or the efficacy of their work. These are empirical questions which are beyond the scope of this article.
It is clear there are people in Oklahoma who need only limited levels of assistance, and that these needs are falling through the gaps in our system of justice. While the Oklahoma Rules of Professional Conduct allow for limited scope representation,33 the flexibility afforded to Oklahoma attorneys has not eliminated the market served by unregulated service providers. In the fall of 2016, Oklahoma, with the leadership of the Oklahoma Supreme Court’s Access to Justice Commission and the Oklahoma Bar Association, participated in the launch of the ABA’s national pro bono website. Oklahoma Free Legal Answers (OFLA) will permit citizens with limited income to submit questions to lawyers who have volunteered their time.34 Even with online access to free legal advice, there will likely remain significant unmet legal needs which exceed the limited scope of the OFLA, a problem which may soon be exacerbated by drastic budget cuts to Legal Services Corporation. Reduced-fee and pro bono services providing representation to Oklahomans in need may soon feel the pain associated with proposed drastic budgets cuts to Legal Services Corporation.35 Perhaps these shortcomings can be addressed in part by nonlawyers trained and within the framework of the existing regulatory system.
When considering further nonlawyer representation such as the LLLT model, we should seek answers to the previously alluded to empirical questions, such as: To what extent, and in what settings, are nonlawyer representatives effective? Under what circumstances would nonlawyer representation create more harm than good? In what instances can the legal needs of citizens be successfully identified and met by the parties themselves, with or without the limited assistance of legal professionals?36
If the data indicates that nonlawyer representation has been effective thus far, why wouldn’t we consider LLLTs as one means of improving access to justice? If this form of assistance, properly regulated, is both effective and affordable, shouldn’t we study it as one of many tools? In our efforts to improve the access our fellow Oklahomans have to their system of justice, shouldn’t we examine any and all options which are elsewhere successful?37 To paraphrase the Washington Supreme Court in its order creating the first LLLT rules in the country, there are many Oklahomans who need only limited levels of assistance. It may well be that affordable assistance can be provided by trained nonlawyers within the framework of the existing regulatory system. Our system of justice and our duty to our fellow citizens requires that we leave nothing on the conference table.
ABOUT THE AUTHOR
Michael Speck holds a B.A. and M.A. in philosophy from OU and a J.D. from Southern Illinois University School of Law. After more than 10 years of civil litigation in Oklahoma City, and nine years of adjunct instruction at Rose State College, Mr. Speck joined the faculty at Tulsa Community College in January 2012 as the program coordinator of the Paralegal Studies Program.