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A Promising Path to Increase Access to Justice

May 18, 2021, 8:01 AM

How can we increase access to justice? The problem seems intractable but urgent. Wealthy individuals and big businesses can afford representation; some of our poorest citizens can get help through legal aid. Everyone else is on their own.

There are entire areas of law where people of modest means are largely unserved by lawyers. Imagine going through a divorce, battling for custody, appearing in court—all without help. The same goes for fighting a denial of unemployment or disability benefits, applying for asylum, responding to an eviction notice, or negotiating with a debt collector.

Positive Solution

A promising solution is to create the equivalent of nurse practitioners in the legal profession: trained professionals to handle less complex matters. In medicine, the introduction of nurse practitioners expanded access and lowered cost. We can do the same in law, and many states are considering doing just that.

The model has been successful elsewhere. In Ontario, “independent paralegals” are well-established. Lay advocates in the U.S. handle cases before the Social Security Administration and immigration courts. And research from England and elsewhere shows that specialization and experience (not being a lawyer) predicts success in representation.

In 2012, Washington state launched an innovative program to create “Limited License Legal Technicians” (LLLTs) to help people with family law issues. After completing a specialized family law curriculum and 1,500 hours of supervised training, legal technicians guide average people through the complex family law system at more affordable rates than lawyers. Experienced paralegals could get licensed more quickly.

In a puzzling decision, a divided Washington Supreme Court elected to sunset the program last summer, just as it was demonstrating real success. The 46 licensed legal technicians can continue to practice, but no new legal technicians will be licensed. As it weighs final rule changes to the program, the court has an opportunity to reconsider the decision. And they should.

A Successful Example

In a new white paper from the Stanford Center on the Legal Profession that we co-authored, we find that the program delivers real access to justice for people of modest means.

For example, people who spent years in abusive marriages while struggling to finalize divorces on their own got resolution within months after hiring a legal technician. One technician in eastern Washington devotes the vast majority of her practice to Spanish-speaking clients who have no other real option for help. A University of Washington professor who taught both future attorneys and legal technicians told us that LLLTs—whose curriculum focuses on family law—were better prepared than law school graduates to handle such issues in practice.

Judges find legal technicians save them time and hassle because they know what information the judge needs, and can submit detailed paperwork and proposed orders in advance of a hearing or trial. One judge estimated it cut the length of trial by a third. Some lawyers have hired legal technicians to bring in business they would have otherwise turned away. One lawyer referred to it as an “absolutely symbiotic” relationship.

Did Politics Play Role in Decision to Discontinue?

So given the program’s successes, how did a majority of the Washington Supreme Court get this so wrong? The court made its decision after the treasurer for the Washington State Bar Association asked the court to end the program because it was “tremendously unfair” that Washington lawyers had to pay for administering the program. The “unfair” cost? Just $7 per lawyer per year to provide access to justice for people of modest means, and less than 1% of the bar’s overall budget.

Just a few weeks later, and prior to the completion of a National Center for State Courts evaluation of the program, the court voted to stop licensing new technicians. As Justice Barbara A. Madsen pointed out in her dissent, this occurred without “a single meeting, without question or comment from LLLT license holders, legal practitioners, or the public at large.”

A significant problem in Washington and other states is political and structural. The supreme court justices in Washington are elected, interact extensively with lawyers, and depend on lawyers for campaign contributions.

Some lawyers have expressed concern that legal technicians will encroach on their territory with lower-cost alternatives, ignoring that lawyers and legal technicians serve vastly different populations. And the bar’s role as both a trade association and a regulatory agency means lawyers hold undue influence over who can provide legal services.

So it is no surprise that the court prioritized the interests of lawyers over consumers, leaving the average citizen unheard and unrepresented. The question now is whether judicial leaders in Washington, like Chief Justice Steve González and Justice Mary Yu, will have the courage and independence of mind to reconsider and support access to justice for Washington citizens, even if that upsets some lawyers.

Regardless, other states should be confident. The model works, at least in family law, an area where people face critical legal issues and are able to spend some money on getting help, but can’t afford a lawyer. The use of nurse practitioner-style professionals for law can increase access to justice for people of modest means, and improve the functioning of our legal system.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Author Information

Jason Solomon is the executive director of the Stanford Center on the Legal Profession and a lecturer in law at Stanford Law School. He previously served as the chief legal officer of the education nonprofit Summit Learning, and as a law professor at William and Mary and the University of Georgia.

Noelle Smith is a third-year law student at Stanford Law School, where she is a senior editor on the law review and a research assistant at the Center on the Legal Profession.

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