Nurse practitioners for the law? Some judges are cheerleaders for limited practice professionals

By Peter Vieth

The Daily Record Newswire

At least three states are exploring the idea of licensing limited-practice legal professionals to try to open the courthouse door for those who can't afford a full-service lawyer, but in Virginia the concept is just one of many access tools now under study.

Some lawyers blanch at the thought of limited-skill legal technicians preparing court documents and advising clients without direct oversight by a fully licensed lawyer. One leading legal aid attorney in Virginia worries about a "second class" justice system for those who can't afford real lawyers.

But top judges in Washington, Oregon and New York have become cheerleaders for limited practice professionals or similar models of "unbundling" of legal services.

At least three Virginia study panels are considering various aspects of the unbundling concept in an effort to create pathways for low- and middle-income citizens to get a fair hearing when they have a legal problem.

And bar leaders report there is new interest in an alternative proposal to boost access to legal services.

Washington takes the plunge

The state of Washington was the first to roll out a program to allow what are termed Limited License Legal Technicians. A group of now-trained specialists in domestic relations were recently waiting to take an exam.

Once licensed, LLLTs will be essentially document preparers. They may not go into courts with their clients or negotiate on behalf of a client, according to Massachusetts lawyer and writer Robert J. Ambrogi, who reported on the Washington project. "They are the nurse practitioners of the legal world," he said.

Washington's LLLTs will be subject to ethics rules and discipline and must be covered by malpractice insurance. To sit for the exam, candidates first had to have 3,000 hours of substantive law-related work experience under licensed lawyers.

They also had to have at least an associate degree and 45 hours of core curriculum, taught at community colleges. An additional 15 hours of family law is required for that practice area, the only available so far.

A 2014 report from an American Bar Association task force urged state regulators to set up programs for limited legal services provided by persons other than law school graduates.

"Proponents maintain there is simply no other way to address the justice gap in the United States," Ambrogi wrote.

Other states experiment

New York has skipped the licensing function and simply allowed helpers for some people involved with housing and consumer debt cases. Called "navigators," the nonlawyers can help prepare documents, assist in negotiation and even go to court to answer questions from a judge and provide "moral support," Ambrogi wrote.

New York's top judicial official, Jonathan Lippman, a proponent of the navigator program, said he will ask the legislature to approve a higher level of service by non-lawyers in Housing Court and consumer credit cases.

In both California and Oregon, study panels have recommended limited licensing to meet the needs for legal services. Those ideas remain under study.

Virginia casts wide net for study

Virginia Supreme Court Chief Justice Donald W. Lemons said he was aware of the "developing" LLLT issue, but he noted there was no current proposal before Virginia's high court or the court's Access to Justice Commission.

"Of course, if it's proposed by the bar and eventually gets to the court and the Access to Justice Commission, I suspect we would take a position on it. We don't have one at the moment," Lemons said.

A Virginia Supreme Court panel and two committees under the auspices of the Virginia State Bar have "unbundling" issues on their agendas and could recommend some form of limited legal practice.

The Supreme Court's Access to Justice Commission was launched in late 2013 with a mission to recommend ways to promote equal access to justice, especially for Virginians with civil legal needs.

Co-chair John E. Whitfield, executive director of Blue Ridge Legal Services Inc., said he has high hopes the panel can make a difference. The inability to find an affordable lawyer is a "crisis in our system of civil justice," Whitfield said.

"It's a fact of life that your chances of success in civil litigation hinge as much on whether you have counsel as on the merits of your case," he said.

Without speaking for the group, Whitfield said the commission is "looking with interest" at other states' efforts to address the "Justice Gap."

Whitfield said he favors, first, increasing the availability of attorneys for cases requiring counsel through increased funding for legal aid offices and through increased pro bono participation among the bar.

Secondly, Whitfield advocates improving the ability of unrepresented litigants to navigate the civil justice system in cases where attorneys are not absolutely necessary. Tools could include simplified court forms using plain English, greater use of small claims courts and technological innovations that inform and assist unrepresented litigants in drafting proper legal documents.

But the legal aid leader said the key to closing the justice gap will be a triage system developed jointly by the courts, the bar, and legal aid programs to guide low-income Virginians to the resources that are right for them.

The right resource could be an on-line article explaining rights and responsibilities, an on-line guided interview system that generates tailored documents, a courthouse helpdesk, or a lawyer to represent them, either pro bono or from a legal aid office.

Limited-practice legal assistants might not be the right resource, Whitfield said.

"I am hesitant to endorse the introduction of 'limited license legal technicians' as an appropriate step in closing the justice gap in Virginia," Whitfield said.

Whitfield said he fears LLLTs might perpetuate a system that "legitimates a second class, a lower tier, of access to justice for low income Virginians, rather than eliminates it."

"Only if we continue to fail to provide the necessary resources to Virginia's legal aid programs, only if the bar fails to rise to the challenge by increasing its pro bono involvement, and only if the courts decline to take steps to reduce unnecessary barriers for unrepresented litigants to have meaningful access to our court system, would I revisit this proposal as a possible last resort," Whitfield said.

The VSB's Access to Legal Services Committee has been working since the early 1990s, primarily focused on improvements to legal aid and pro bono service. Chair Joanna L. Suyes said the panel has not taken up the idea of LLLTs, but did not rule out the possibility.

The need for affordable legal services "creates a need for us to be creative in finding ways to bridge the gap to make justice more available to low-income folks," she said. "If that includes allowing paralegals or other non-lawyers to handle certain types of legal work, then it's something we should examine."

Ideas for unbundling of legal services are among the vast palette before the VSB's newly formed Future of Legal Practice Task Force.

"The committee has been actively considering all these options," said chair Allen C. Goolsby of Richmond. "We recognize we need to deal with the changing environment," he added.

Limited scope representation could be revisited

One proposal to shrink the access gap that ran out of steam in 2005 may have new legs in Virginia.

Whitfield said some states are allowing lawyers to work on only one phase of a client's case, rather than being required to see all issues to the end.

In a family breakup, for instance, a lawyer could handle a custody dispute without becoming counsel for the whole divorce.

Such a rule would be a "dream come true" for legal aid programs, Whitfield said, because lawyers could help in a crisis and then withdraw after that phase of litigation is completed. More people could be helped overall.

"Pro bono attorneys, in particular, would be interested," Whitfield said.

Whitfield plugged the idea before the court's access commission in September, and now there's word of high level interest.

Suyes recently reported to the VSB access committee that amendments to Rules of Professional Conduct 1.2 and 4.2 proposed several years ago concerning unbundling and ghost-writing are being reconsidered.

Michael W. Robinson of Tysons Corner, chair of the VSB Legal Ethics Committee, said revisions to allow limited scope representation by licensed attorneys recommended and then shelved in 2005 may be getting dusted off.

The starting point could be the Supreme Court's Advisory Committee on Rules of Court, chaired by law professor Kent Sinclair, Robinson and Suyes said. Sinclair did not immediately respond to a request for information on the status of any new consideration.

Robinson said the VSB ethics panel again may be asked to review those "unbundling" proposals if they gain new traction.

"Some things have to percolate and be looked at from various perspectives," he said.

Published: Fri, Jun 12, 2015