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MCLE Self-Assessment Test

Limited-practice license idea faces challenging path

By Amy Yarbrough
Staff Writer

If Washington State’s experience and California’s history is any indication, it could be a long and contentious road ahead for a State Bar of California group exploring the idea of a limited-practice licensing program.

Paula Littlewood
Paula Littlewood
                                                         Photo by S. Todd Rogers

Last month, Paula Littlewood, executive director of the Washington State Bar Association, gave members of the Limited License Working Group an overview of a program recently ordered by her state Supreme Court. Non-lawyers who meet certain levels of training can be licensed to provide technical help on some civil cases. Littlewood did not mince words about the challenges involved in getting to this point.

“It was a 10-year, pretty hard-fought battle,” she said.

Looking for ways to increase consumer protection and expand legal services to poor Californians, the State Bar’s Board of Trustees began studying the idea of limited-practice licensing following a bar retreat in San Diego this January. The working group, an advisory body that will ultimately make a recommendation to the Board of Trustees’ Regulation, Admissions and Discipline Committee, held its first public meeting on April 11. The group heard from Littlewood and other speakers, including a representative from the Law Society of Upper Canada.

Under Washington’s program, which went into effect on Sept. 1, technicians must be trained and approved by the Limited License Legal Technician Board. They work independently and help clients with tasks including selecting and completing court forms, informing them of procedures and timelines and reviewing and explaining pleadings. They are not, however, allowed to represent their clients in court and cannot negotiate with opposing counsel on the clients’ behalf.

Craig Holden and Joseph Dunn
Limited License Working Group Chairman Craig Holden and State Bar of California CEO Joseph Dunn
                                                        Photo by S. Todd Rogers

At the recent meeting, Littlewood told working group members that instituting a similar program in California would mean “getting ahead of the curve.” In her presentation, she noted that the legal profession has been undergoing dramatic changes. Law school applications are declining, the income disparity between the rich and the poor is widening, and consumers are increasingly favoring a do-it-yourself approach to save money. The public is also relying more heavily on technology, using services like LegalZoom, an online legal document preparation firm.

“As lawyers, we have to figure out how we are going to serve our client base,” she said.

Although it went into effect only recently, Washington’s Limited License Legal Technician Program dates back to 2001, when the legislation was passed that established the state’s Practice of Law Board to investigate allegations of the unauthorized practice of law. The board was also established to issue advisory opinions about the authority of non-lawyers to perform legal services and to make recommendations to the Supreme Court about services that non-lawyers could perform to fill the need for legal services. The board submitted a rule to the Supreme Court in 2008, but it wasn’t approved until 2012, with some modifications.

Critics of limited-practice licensing worry that allowing non-lawyers to perform certain legal tasks may increase opportunities for fraud. Trustee Karen Goodman, who is a member of the working group, asked Littlewood to address that complaint and another concern, that the effort would take work away from lawyers.

To the contrary, Littlewood said, consumer protection is one of the “highest ideals” of her state’s program. She also cited figures indicating that 85 percent of indigent clients and families of moderate means are not being served anyway.

“The needs of the consuming public have never been ‘one size fits all,’ ” she said. “There is so much work to go around. How can you take it away from people?”

Under California law, non-lawyers are already allowed to perform some legal tasks that don’t constitute the practice of law, such as helping people fill out legal forms. Paralegals working under the supervision of licensed attorneys (Business and Professions Code Section 6450 et seq), unlawful detainer assistants, legal document assistants (Business and Professions Code Section 6400 et seq) and immigration consultants (Business and Professions Code Section 22440 et seq) registered by the county clerks or California’s Secretary of State can also assist consumers with legal needs in limited ways, short of practicing law.

Each year, the State Bar receives hundreds of complaints about people engaged in the unauthorized practice of law. But as it now stands, the bar has no authority over those non-lawyers who step over the line, and can only send cease-and-desist letters and notify law enforcement. Of particular concern are abuses in California’s immigrant community, where notary publics , who have very limited powers, are often confused with professionals called “notarios.” In some Latin American countries, notarios can legally perform many official acts.

The State Bar studied the idea of licensing legal technicians in the late 1980s and early 1990s. The American Bar Association did so in the mid-1990s. Nothing came to fruition, even though all of the studies supported the concept.

Robert Hawley, deputy executive director of the State Bar, pointed out that for years in the legal marketplace, the supply of lawyers has risen, the demand for legal services has risen and the cost of legal services has risen.

“Under the economic laws of supply and demand, this is not possible,” Hawley said. “It can occur only in a monopoly and perhaps it is time for lawyers to give up their monopoly on the practice of law.”

Adding up what it costs for a fully licensed lawyer to deliver full-service legal services in today’s market, it is hard to deliver such legal services for less than $100 an hour, a price many people cannot afford, he said.

“There’s a market below that to be served by trained professionals. … Lawyers are not serving that market,” he added. “We have simply priced ourselves into oblivion.”

Not everyone shares Hawley’s view.

In a Feb. 1 letter to State Bar President Patrick M. Kelly and the Board of Trustees, Stephen Ensberg wrote that limited-practice licensing would “simply give the veneer of legality to these unauthorized, ill-trained practitioners who do more damage than good.”

“The proposal for licensed non-lawyers simply exposes the public to more harm than is already the current situation,” the West Covina, Calif.-based attorney wrote. “One only has to daily stand outside the Los Angeles County Superior Court in Pomona or the Rancho Cucamonga Court of San Bernardino and watch these individuals daily hand out fliers and cards for their purported legal services and see the harm they are creating and doing.”

State Bar President Kelly said doing nothing is not an option.

“Despite fundamental changes in society and the needs of clients, the basic legal service delivery system we use today has not fundamentally changed for more than 150 years,” Kelly said after the meeting. “It is time to re-examine how legal services are being delivered, and the California State Bar’s examination of limited-practice licensing is a strong step in this direction.”

The next meeting of the Limited License Working Group will take place from 10 a.m. to 1:30 p.m on May 22 at the State Bar’s office at 1149 S. Hill St. in Los Angeles.