Recently I was interviewed for Bloomberg BNA’s article, New Washington Rule Allows Legal Techs to Become Minority Owners in Law Firms. The article is about how new Rule of Professional Conduct (RPC) 5.9 permits lawyers to own law firms with Limited License Legal Technicians (LLLT).
I want to take this opportunity to elaborate on my comments in the article. I want to be clear on one thing: I am not against ethics reform. I am, in fact, very much in favor of ethics reform. Among other points, I am in favor of alternative business structures (ABS) that allow non-lawyers to invest and have ownership in a firm or company that provides legal services, as long as client interests are adequately protected, which they can be with very basic, simple measures. I do not want to come across as the entrenched, anti-change scrooge in the conversation, because I am not. In fact, I am far from it.
There is quite a difference between allowing non-lawyers to invest in and have ownership in a law firm and authorizing non-lawyers to practice law. In my view, LLLTs would be fine if their scope were limited to practicing law within a law firm where they were supervised by lawyers and those lawyers were ultimately responsible for the quality of advice and service the LLLT provided to the public. However, that is not the case in Washington. My concern with the LLLT program is primarily that LLLTs can hang their own shingles and provide substantive advice to clients independent of lawyer supervision.
Thus, I am not so much a “fierce critic” of LLLTs, rather I believe that the process of reforming and modernizing ethics rules, as well as the legal system itself, should be done in an intellectually objective and rigorous manner. Additionally, the leaders of courts and bar associations should be transparent about their vision of the future before decisions re: reforms are actually made. There are many stakeholders involved and they should all have a place at the table in thinking through and brainstorming the best solutions for the future.
Ultimately, the problem with the LLLT program is that it is not a solution to the problem it was designed or sold to solve. Yet, all the advocates of the LLLT program chatter endlessly about how it will make a significant impact on fixing access to justice problems because LLLTs will be cheaper than lawyers, which is the sole argument in support of LLLTs. The proof provided for this is essentially limited to – “if I say it enough, it must be true.”
First, there are many self-employed young lawyers out in the market, many of whom are using sliding scale and flat fee arrangements. A young associate who works for me says that she knows fellow young lawyers who are billing $50 an hour in downtown Seattle. I can virtually assure you that a solo LLLT could not bill less than that and maintain a business that could properly serve clients. A LLLT employed by a law firm would likely bill no less than $120 – $200 an hour, which is currently the hourly rate range for paralegals in Seattle. So, if you are poor or have very limited means, does it really matter whether the rate is $150 or $250? I would say, no. It does not matter, because you cannot afford either. If you had $50 to spend, would you spend it with a LLLT who can only provide limited services or a lawyer who can provide either unbundled services or full service? My guess is that you would spend it with a lawyer. It is beyond me why so many other states, like California, are so eager to jump on this Washington State bandwagon before the first LLLT is even licensed to practice.
A great first step would be for bar associations to connect no/low means people with these young lawyers and others who offer flat fee, reduced fee, and sliding scale services. After all, the WSBA’s own Civil Legal Needs Study determined that the #1 reason poor people had no or limited access to justice was because they did not know how to get access to justice or they did not know they had a problem that could be addressed by the justice system. Why not connect these people with professionals in the best position to help them? Why not leverage the superior resources that currently exist?
Second, the LLLT program merely legitimizes a de facto practice that has existed for a long time in Washington, to wit: paralegal businesses that assist people in filling out their forms. We have seen waives of these come and go over the past 25 years of my firm’s existence. We have been hired numerous times to help people fix the mess they got themselves into through a paralegal service. Inevitably, it costs far more to undue court orders than to enter them properly in the first place.
Third, if we are serious about fixing access to justice, the only empirical evidence that supports moving the needle is legal aid through non-profits, pro bono, and government funding. There are also other economic benefits to legal aid, as illustrated by a recent report out of Tennessee.
Overall, US government legal aid funding has been cut back while the rule of law continues to migrate into every corner of our lives. Along with reduced legal aid, increased complexity further exacerbates the access to justice problem, which puts pressure on the court and bar associations to fix the problem. Ultimately, this is not a truly fixable problem without a government-sponsored entitlement program – meaning, there is no market solution for fixing access to justice for the poor because the poor have no money and markets run on consumer spending. The LLLT program is a market solution, which will not fix the problem and, thus, I would argue it is really more of a political maneuver.
My point here is that rather than start ethics reform by randomly introducing less qualified, for-profit law practitioners into the market as specious proof that something is actually being done to improve access to justice, let’s tackle the challenges that can and will move the needle; such as, modernization of the court system, increasing legal aid, and modernizing lawyer ethics rules that will enable lawyers and law firms to innovate and modernize the business and practice of law.